Labourers International Union of North America, Local 607 v. Rino Zanette (1981) Ltd., 1988 CanLII 3728

[1988] OLRB Rep. September 923

2058-85-M; 0343-87-G Labourers International Union of North America, Local 607, Applicant v. Rino Zanette (1981) Ltd., Respondent; Labourers International Union of North America, Local 607, Applicant v. Rino Zanette (1981) Ltd., Sault Holdings Limited, Zanette Investments Inc. and 444348 Ontario Limited, Respondents (63, 1(4)); Labourers International Union of North America, Ontario Provincial District Council and Labourers International Union of North America, Local 607, Applicant v. Rino Zanette Limited, Rino Zanette (1981) Ltd., 444348 Ontario Limited, Zanette Investments Inc., Sault Holdings Limited, Respondents

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

APPEARANCES: S. B. D. Wahl, P. Little and R. Davis for the applicant; Rino Zanette, P. Coccimigljo and P. Jasiura for Rino Zanette (1981) Ltd. and Sault Holdings Limited; Lorne Firman for 444348 Ontario Limited and Zanette Investments Inc.

DECISION OF KEN PETRYSHEN, VICE-CHAIR, AND BOARD MEMBER I. M. STAMP; September 21, 1988

1The Board has three applications before it. Board File No. 2058-85-M is a referral of a grievance to arbitration pursuant to section 124 of the Labour Relations Act ("the first referral"). During the course of hearing the first referral, the applicant made an application under section 63 and subsection 1(4) of the Act. Related to its application under section 63 and subsection 1(4) of the Act, the applicant referred another grievance to arbitration under section 124 of the Act -Board File No. 0343-87-G ("the second referral").

2In the course of the proceedings, the Board was required to make a number of oral rulings and was also called upon to deal with allegations of bias and that it breached the rules of natural justice. In order to appreciate the Board's rulings and its response to these allegations, the Board finds it appropriate to set out the history of the proceedings at some length.

3In a decision dated January 27, 1986 concerning the first referral, the Board (differently constituted) found that Rino Zanette (1981) Ltd. contravened the collective agreement binding upon that company and the applicant and, accordingly, found that the grievance in that matter must succeed. The Board remained seized of the matter of damages in the event the parties were unable to resolve that issue. Subsequently, the Board was advised that the parties were unable to agree on the damages owing to the Labourers' International Union of North America, Local 607 ("Local 607"). The present panel was scheduled to hear the damages issue on October 27, 1986. Mr. Rino Zanette appeared at that time on behalf of Rino Zanette (1981) Ltd. What occurred on that day is set out in the Board's decision of November 19, 1986. In essence, the hearing was not completed on October 27, 1986 because Rino Zanette, who was called as witness by Local 607, refused to answer questions put to him and which the Board directed him to answer. One of the projects referred to in Local 607's grievance was the "CNR Hostel, Atikokan, near 109 White Street". Rino Zanette testified that Rino Zanette (1981) Ltd. did not perform any work on that project but he would not answer questions concerning who did perform the work even though he knew the answer since he testified he played a role in supervising the job. By refusing to answer questions as directed by the Board, Rino Zanette breached Board orders. The Board entertained submissions from the parties as to whether it would find Rino Zanette in contempt in the face of the tribunal. While Rino Zanette was making his brief submissions, the Vice-Chair asked him if he would like the opportunity to consult with counsel prior to the Board deciding the contempt issue. Rino Zanette responded by indicating that he would like to consult with counsel. After recessing to consider the matter and over Local 607's objection, the Board determiined that it would adjourn the proceedings in order to give Rino Zanette the opportunity to consult with counsel. The Board directed that the matter would continue in Thunder Bay on December 15, 1986.

4When the hearing resumed in Thunder Bay on December 15, 1986, Rino Zanette appeared with counsel, Mr. Coccimiglio of the law firm of Weiler, Maloney, Nelson. On behalf of his client, Mr. Coccimiglio advised the Board that Rino Zanette was prepared to answer all relevant questions and the Board proceeded to hear the remainder of Rino Zanette's evidence. Rino Zanette was again asked certain questions relating to the C.N.R. Hostel project and in his answers he disclosed the names of other companies in which he or other members of his family had an ownership interest. These companies were 444348 Ontario Limited ("444348"), Zanette Investments Inc. ("Zanette Investments") and Sault Holdings Limited ("Sault Holdings"). When it appeared that counsel for Local 607 was engaging in a subsection 1(4) inquiry, the Vice-Chair asked counsel the relevance of that line of questioning. Counsel advised the Board that it was the intention of Local 607 to make an application under subsection 1(4) and section 63 of the Act and to ask the Board to amend the first referral by adding the other companies as respondents. The Board determined that counsel's questions which were appropriate for a subsection 1(4) inquiry were not relevant to the issue then before the Board. When Rino Zanette's evidence was completed, counsel for Local 607 advised the Board that Local 607 was making a subsection 1(4) and section 63 application against the companies Rino Zanette referred to in his evidence. The Board suggested that counsel follow up his request with a letter setting out the information required to process such an application. Mr. Coccimiglio undertook to provide counsel for Local 607 with the correct names and addresses of all the companies. Counsel for Local 607 then asked the Board to consolidate the subsection 1(4) and section 63 application with the first referral and to deal with the contempt issue by finding Rino Zanette guilty of contempt. After considering the parties submissions and recessing to consider the matter, the Board orally ruled at the hearing that it would not be appropriate to consolidate the matters at that time without hearing from the respondents in the subsection 1(4) and section 63 matter and prior to giving the employees of the companies notice of the application. The Board also orally ruled at the hearing that it would deal with the contempt issue at some later time in the proceeding. After consulting the parties regarding future dates, the Board fixed continuation dates in March at the hearing. The March dates were subsequently cancelled due to the unavailability of a Board member. After consulting with the parties to the first referral, the next dates fixed for the hearing were May 19, 20, and 21, 1987.

5By letter dated January 6, 1987, Local 607 made its written request for relief under section 63 and subsection 1(4) of the Act. The appropriate Notice to Employees was sent to the respondents for posting. At the hearing on May 19, 1987, L. Firman appeared as counsel for 444348 and Zanette Investments. Mr. Rino Zanette appeared on behalf of Rino Zanette (1981) Ltd. and Sault Holdings. Although a statement of desire was filed with the Board, no one appeared at the hearing on behalf of objecting employees. Prior to the hearing, Mr. Firman filed the following letter dated May 11, 1987 with the Board:

May 11, 1987

We are the solicitors for 444348 Ontario Limited and Zanette Investments Limited and have recently been retained by our client with respect to proceedings scheduled by the Board to continue in Thunder Bay on May 19, 20, and 21, 1987. We take strong objection to our client being added to the proceedings at this late point in time and set out herein the basis of our objections:

1. It would appear that these proceedings commenced with the filing of a grievance by the Labourers International Union of North America, Local 607 against Reno Zanette Limited and Reno Zanette (1981) Ltd. and which grievance was filed on October 30, 1985. It should be noted that at this point in time, my clients, 444348 Ontario Limited and Zanette Investments Limited, were not named as Respondents.

2. The aforementioned grievance dealt with an alleged violation of the Collective Agreement at various construction projects listed in Schedule "A" to the grievance and specifically:

(i) Commercial Building next to Marostica Motors, 10th Avenue, Thunder Bay;

(ii) Arnone Transport Limited garage, Thunder Bay;

(iii) CNR Hostel, Atikokan;

(iv) Commercial Building, 1313 brown Street, Thunder Bay;

(v) Motel Valencia, 103 Main Street, Atikokan.

3. The matter was then referred as a grievance to arbitration under Section 124 of the construction industry provisions of the Labour Relations Act and only Reno Zanette (1981) Ltd. was named as the Respondent. My clients, 4444348 Ontario Limited and Zanette Investments Limited, were not named as respondents at that time. In addition, the Board gave the matter a file number 2058-85-M.

4. Subsequently, in November of 1985, Mr. W. Jackson, an Officer of the Board, was appointed to confer with the parties to endeavour to effect a settlement of the grievance in this case. The letter from the Board appointing Mr. Jackson was dated November 18, 1985, and was addressed to the Labourers International Union of North America, Local 607 and Mr. Ronald Davis as Business representative. In addition, the Board by way of letter of November 18, 1985, served a formal Notice of Hearing on the Labourers International Union of North America, Local 607 as Applicant and Reno Zanette (1981) Ltd. as Respondent indicating that the Hearing of this matter would occur on November 29, 1985, in Toronto.

My clients, 4444348 Ontario Limited and Zanette Investments Limited, have not been named as

respondents to this point in tixr and therefore did not have the opportunity to avail themselves of the services of Mr. W. Jackson in an effort to resolve the grievance.

5. The Hearing originally sche3uled for November 29, 1985, was subsequently rescheduled to occur on December 18, 1985, and once again, only Reno Zanette (1981) Ltd. was named as the Respondent.

6. The Board heard this matter and issued a decision on December 27, 1985, to the parties, Labourers International Union of North America, Local 607 as Applicant and Reno Zanette (1981) Ltd. as Respondent indicating that it was not prepared to grant the adjournment to the Hearing that was requested by counsel for the Respondent at that time. It should also be noted that apparently the Respondent had filed documents asking for judicial review of a different proceeding of the Board and which decision was rendered on January 27, 1984.

7. By way of decision dated January 27, 1986, the Board in a matter involving the Labourers International Union of North America, Local 607 as Applicant and Reno Zanette (1981) Ltd. as Respondent indicated that the Respondent company was bound by the Provincial Collective Agreement and was required thereby to utilize members of the Applicant Union for construction labourers' work for all sectors with respect to the six projects delineated, specifically:

(i) CNR Hostel, Atikokan near 109 White Street;

(ii) Commercial Building across the street from Marostica Motors, 10th Avenue, Thunder Bay;

(iii) Arnone Transport Limited garage, 235 Queen Street, Thunder Bay;

(iv) Halfway Motors Limited, Memorial Avenue, Thunder l3ay;

(v) Commercial Building, 1313 Brown Street, Thunder Bay;

(vi) Building near the Valencia restaurant, 105 Main Street, West, Atikokan.

Again, only Reno Zanette (1981) Ltd. was named as the Respondent at that time and with respect to that decision and accordingly, 444348 Ontario Limited and Zanette Investments Limited, did not have an opportunity to participate in those proceedings, never having been made a party as Respondent to them.

By that same decision, the Board deferred dealing with the amount of damages in the hope that the parties could agree upon an amount and if they were unable to do so, the Board was to remain seized of the matter of damages.

8. On March 12, 1986, Mr. Steven WahI wrote to the Ontario Labour Relations Board with respect to this file number, 2058-85-M indicating that the parties had not been successful with respect to the issue of quantum of damages and therefore requested that the matter be relisted for Hearing on a date to be fixed by the Registrar in consultation with the parlies.

My clients, 444348 Ontario Limited and Zanette Investments Limited, were not consulted by Mr. WahI or the Board with respect to the dates to be set by the Registrar because of course they were not parties to the proceedings. To therefore set dates at this po:~nt in time without consultation with my clients and establishing a date which is suitable to all is inequitable and a breach of natural justice.

9. On June 27, 1986, Mr. Paul Gordon, Carter & Johnson, solicitors in Thunder Bay, wrote to Mr. Steven WahI of Koskie & Minsky confirtning that an agreement had been made to adjourn the proceedings at that time since Mr. Reno Zanette had been confined to a medical facility in Centre City, Minnesota, and was therefore unable to participate in the Hearing scheduled by the Board for June 30, 1986. A number of conditions were also set out in that letter of confirmation which listed several undertakings of Mr. Gordon on behalf of Reno Zanette (1981) Ltd.

444348 Ontario Limited and Zanette Investments Limited were not named as Respondents at this point in time and therefore were not included in any adjournment proceedings or in any consent to adjournment of the proceedings.

10. Mr. Steven WahI subsequently wrote to the Board on July 31,1986, indicating that he wished the matter of quantum of damages to be set down by the Board for hearing on September 8, 9, 15, 16, 17 or 29, 1986.

444348 Ontario Limited and Zanette Investments Limited were not consulted with respect to the suggested dates and were not listed as parties to the proceedings at this time. The Board subsequently issued a decision on November 19, 1986, dealing with the refusal of Mr. Reno Zanette to answer several questions put to him at the Hearing scheduled and heard on October 27, 1986. Since the matter was not concluded at that time the Board decided that the issue would continue on December 15, 1986, in Thunder Bay and the Board would hear further submissions from the parties on the issue of whether or not the Board should find Mr. Reno Zanette in contempt of the Board and if so, what penalty it would impose on Mr. Reno Zanette.

11. On January 6, 1987, Mr. Steven Wahl wrote to the Registrar indicating that the testimony at the Hearing on December 15, 1986, revealed that other corporations were associated or related businesses or activities under common direction and control with Reno Zanette Limited and/or Reno Zanette (1981) Ltd. with respect to their construction activities and specifically, those corporations were:

4-44348 Ontario Limited;

Zanette Investments Limited; and

Sault Holdings Limited.

At that time, Mr. Wahl requested the board to amend the operative grievance to assert a violation against each of the above-mentioned corporations jointly and severally and that the Board apply Section 63 and/or 1(4) of the Labour Relations Act and grant the appropriate relief. He also requested that notice be served on each of the above corporations.

This was the first time that 444348 Ontario Limited or Zanette Investments Limited had ever been named as parties to this proceeding. This of course was done at a time after the liability with respect to the grievance had been determined and the only matter to be decided was the quantum of damages. It is trite to say that it is too late in the day for the Union to attempt to expand the grievance at this point in time when in fact the parties, 444348 Ontario Limited and Zanette Investments Limited, were never notified or named as Respondents prior to this time, and therefore did not have an opportunity to defend against the grievance. To allow these parties to be added at this point in time would be a breach of natural justice since of course the parties do not know the evidence that has been introduced against them or Reno Zanette (1981) Ltd. to date.

In that same letter, Mr. Wahl indicated that the Board was to resume the Hearings on March 25, 26 and 27, 1987, but my clients, 444348 Ontario Limited and Zanette Investments Limited, still did not receive a copy of Mr. WahI's letter of January 6, 1987, at this time and they were never informed of the resumption of Hearings on March 25, 26 and 27, 1987.

12. By way of letter of February 4,1987, Mr. WahI indicated that the grievance had been expanded to include 444348 Ontario Limited and Zanette Investments Limited and Sault Holdings Limited and the construction projects involved were also expanded to include 725 5. James Street, Thunder Bay, Ontario and an apartment building construction project at 800 Gordon Avenue, Thunder Bay, Ontario. The top portion of this letter indicates that the letter was "Delivered" to all of the companies named but 444348 Ontario Limited and Zanette Investments Limited never did receive such letter and it was not delivered to them.

Mr. WahI also indicated in that same letter that the Hearing was to be scheduled on March 25, 26 and 27, 1987, and once again, my clients had no input into the time of the Hearings with respect to his matter.

13. On April 30, 1987, my clients, 444348 Ontario Limited and Zanette Investments Limited, were served with registered documents which indicated that the Hearing on this matter was scheduled to resume in Thunder Bay on May 19,20 and 21, 1987, and in addition, also included a copy of the original letter of February 4, 1987, from Mr. Wahl and which date had been crossed out as well as the word "Delivered" crossed out and in its place, was the date April 29, 1987, and the word "Registered".

However, once again, my clients were not involved in the setting of the dates for this matter and such dates appear to have been suggested unilaterally by the Union.

14. To date, my clients still have not formally received a copy of the grievance which started these proceedings. In addition, my clients have not participated in any proceedings with respect to the grievance to date, never having been set down as a party to the proceedings until after the question of liability had been determined and after the question of quantum of damages was found to be not capable of resolution by other parties. To therefore allow the grievance to be expanded so as to include my clients as parties at this point in time is an obvious breach of natural justice as well as being contrary to any of the principles of grievance administration.

15. Furthermore, the dates of May 19, 20 and 21, 1987, are not convenient to me or to my clients and since such dates represent a continuation of the previous Hearing, it is suggested that the Board practice usually is to confer with the parties with respect to the establishment of dates which are mutually convenient. Such dates have not been established on a mutually-convenient basis on this occasion and therefore we hereby request an adjournment of the said proceedings for these reasons.

16. We also request and respectfully submit that the matter of a violation of the Collective Agreement as specifically set out in this grievance filed cannot now be relitigated and cannot involve my clients since they were never named as Respondents in the first instance. To allow my clients to be added as parties at this stage in the proceedings would be analogous to having a Supreme Court action decided on the basis of liability and then allowing multiple parties to be added after the question of liability has been decided. Simply put, this is so obvious a breach of natural justice as to not warrant any further comment.

17. To date, my client only has been informed that the Hearing is to continue on May 19, 20 and 21, 1987, in Thunder Bay and that the matter involves the issue of damages arising by way of the grievance alleging a violation of the Collective agreement and also involves a Section 63 and Section 1(4) application by the Union. It is respectfully submitted that we require additional time and documentation in order to prepare for this matter and to fully deal with the case on behalf of our client. To establish the dates of May 19, 20 and 21, 1987, in a unilateral fashion without consideration of the time constraints of our client or ourselves is also inequitable and contrary to the normal Board practice.

18. Furthermore, my clients have been denied the opportunity to attempt to discuss the matter with the Union since my schedule does not allow such to occur prior to the hearing.

19. My clients have also not been given any particulars with respect to the Section 63 application for successor rights or the Section 1(4) related employer application and since the Board procedure is to have the Respondent proceed first, my clients are unfairly disadvantaged and prejudiced in not knowing the particulars which they are to address in any hearing, if they are to do so at all.

20. In summation, this proceeding by the Union is so prejudicial, inequitable and a breach of material justice to my clients as to require that the case be dismissed against my clients altogether with respect to any damages arising from the grievance and alternatively, at least be adjourned with respect to the issue of successor rights and related employer applications.

21. We therefore respectfully request that the proceedings scheduled for May 19, 20 and 21, 1987, against Zanette Investments Limited and 444348 Ontario Limited be adjourned with respect to the issue of successor rights under section 63 and related employer under Section 1(4) and in addition, that the matter of damages against Zanette Investments Limited and 444348 Ontario Limited be dismissed altogether.

We would appreciate an answer with respect to this matter as soon as possible.

Yours truly,

G. Lame Firman

6When the hearing commenced on May 19, 1987, the Board entertained oral submissions from the parties concerning the issues raised by Mr. Firman's letter of May 11, 1987. After recessing to consider the submissions, the Board orally advised the parties of its rulings with respect to the issues that were addressed. The Board ruled as follows:

(1) The Board would not consolidate the first referral or the second referral with the section 63 and subsection 1(4) application;

(2) The Board would not permit Local 607 to expand the grievance giving rise to the first referral and would not allow Local 607 to add Mr. Firman's clients as respondents in the first referral.

(3) The Board would proceed to hear the section 63 and subsection 1(4) application since it was satisfied the respondents were provided with adequate particulars and adequate notice of the proceeding;

(4) Based on the representations of Mr. Firman, the Board was satisfied that 444348 and Zanette Investments did not receive enough notice of the second referral and the Board determined that it would not hear the second referral at that time; and,

(5) The Board denied the request for an adjournment. The reasons for its rulings are set out below.

7. The Board was satisfied that it should not consolidate the first referral with the section

63 and subsection 1(4) application in circumstances where the liability issue had been determined and all that remained was the determination of what damages were owing to Local 607 from Reno Zanette (1981) Ltd. It would be unfair to entities who were not parties to the first referral, such as 444348 and Zanette Investments, to have subsequent proceedings consolidated with the first referral. For similar reasons, it would be inappropriate to expand the grievance giving rise to the first referral and to add 444348 and Zanette Investments as parties to the first referral. The Board made it clear to the parties that it would determine the section 63 and subsection 1(4) application on the evidence and submissions made in the context of that proceeding and would not rely on any evidence that had been called to date on the damages issue.

8. In arguing the Board should grant his clients an adjournment, Mr. Firman focused on the following matters. He submitted that the letter requesting section 63 and subsection 1(4) relief lacked particularity, that his clients had not received enough notice of these applications and of the second referral, that he was unavailable to attend for some of the days scheduled for the hearing, that the dates were fixed without his clients being consulted and that his clients should have the benefit of a Board Officer. The Board was satisfied that the section 63 and subsection 1(4) application made by Local 607 did not lack particularity. Applicants in such cases are not in a position to do much more than provide the name of an entity and claim relief under the relevant provisions. Given the nature of the provisions relied upon, it is the respondents that possess the knowledge of the facts. This is, of course, why the Act obliges respondents to adduce all facts within their knowledge that are material to the allegations and why the Board, as a matter of procedure, requires respondents to call their evidence first. Although Mr. Firman and counsel for Local 607 discussed the case in early May, 1987, which incidentally resulted in Mr. Wahl providing Mr. Firman with a considerable amount of material relating to the case, there was no indication that Mr. Firman requested particulars for the section 63 and subsection 1(4) application. The Board was also satisfied that 444348 and Zanette Investments received sufficient notice of the section 63 and subsection 1(4) application. Mr. Rino Zanette, a part owner of Zanette Investments, was present with counsel at the December 1986 hearing when Local 607 first made its request for section 63 and subsection 1(4) relief against 444348, Zanette Investments and others. Counsel for Rino Zanette's company at that time undertook to provide counsel for 607 with the correct names and addresses for all of the respondents. Robert Zanette, the owner of 444348, lives with his parents. In these circumstances, we found it very difficult to accept that the representatives of 444348 and Zanette Investments were unaware in December, 1987, that Local 607 intended to seek section 63 and subsection 1(4) relief against those entities. In any event, the Board was advised that 444348 and Zanette Investments received notice from the Board of the section 63 and subsection 1(4) application on April 30, 1987. Discussions between Mr. Firman and his clients occurred on May 4, 1987 and the replies that were filed to those applications were dated May 4,1987 in which the respondents denied there was any merit to the applications. Since these events occurred well before the hearing date of May 19, 1987, the Board was satisfied that 444348 and Zanette Investments received sufficient notice of the hearing. These respondents, however, did not receive notice of the second referral until shortly before May 19, 1987. Although the obvious intention of the Legislature is to have such referrals heard quickly, the Board was satisfied that 444348 and Zanette Investments did not receive sufficient notice of the second referral. The Board advised the parties that it would not consolidate the second referral with the section 63 and subsection 1(4) application and would not deal with the second referral at that time.

9. The Board generally does not consult with the parties in fixing the initial dates for a hearing but often will consult when setting continuation dates. For 444348 and Zanette Investments, the dates of May 19, 20 and 21 were the first days they were given notice of and the fact they were not consulted regarding those dates is inconsistent with neither the Board's practice nor the requirements of natural justice.

10. Since the Board determined it would not consolidate the section 63 and subsection 1(4) application with the first referral, there was no need, as counsel had requested, to adjourn the proceedings to give Mr. Firman's clients the opportunity to see if that matter could be resolved with the assistance of a Board Officer. The Board did not appoint a Board Officer in the section 63 and subsection 1(4) application to assist the parties. In the Board's view, this was not a basis for adjourning the proceeding given the circumstances before us. 444348 and Zanette Investments based its adjournment request in this submission simply on the ground that the Board did not exercise its discretion in favour of appointing a Board Officer. Without some indication that the intervention of a Board Officer would likely serve a useful purpose, and Mr. Firman provided us with no such indication, the Board was not prepared to adjourn the proceedings merely because a Board Officer had not been appointed.

11. Although available for May 19, 1987, Mr. Firman argued his clients were entitled to an

adjournment since he would not be available due to previous commitments on May 20 and May 21,

1987. He advised the Board that on May 20 he had an arbitration hearing and on May 21 he had a

commitment out of town. Without asking for the details of the out of town commitment on May

21, the Vice-Chair asked counsel if it was possible to make other arrangements for the 21st and counsel indicated that that was possible. From that point on, the focus of the submissions centred on Mr. Firman's commitment to attend the arbitration proceeding on May 20, 1987. As noted earlier, Rino Zanette appeared at the hearing without counsel. He advised the Board that his previous counsel was unavailable since he recently married and was on his honeymoon. For this reason, Rino Zanette took the position that he was unable to proceed without legal counsel and requested an adjournment. Local 607 opposed both requests for an adjournment.

12. Subsection 102(13) of the Act and subsection 82(1) of the Board's Rules of Procedure provide as follows:

102.-(13) The Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions, and the Board may, subject to the approval of the Lieutenant Governor in Council, make rules governing its practice and procedure and the exercise of its powers and prescribing such forms as are considered advisable.

82.-(1) The Board may, if it considers it advisable in the interests of justice, adjourn any hearing for such time and to such place and upon such terms as it considers fit.

13. The following excerpt from Catalyst Technology (Canada) Ltd., [1987] OLRB Rep. June 803 at page 805 comments on the Board's practice when faced with adjournment requests:

The usual practice of the Board is to grant an adjournment only on the consent of all of the parties to a proceeding, or where a request for an adjournment is based on circumstances which are beyond the control of the party making the request and where to proceed would seriously prejudice such party. See, for example, Northwest Merchants Ltd. Canada, [1983] OLRB Rep. July 1138, in which the Board wrote, in part, as follows (at paragraph 7):

...The Board has a discretion to adjourn any hearing, if it considers it advisable in the interests of justice, for such time and to such place and upon such terms as it considers fit (see section 82(1) of the Board's Rules of Procedure; see also section 21 of the Statutory Powers Procedures Act, R.S.O. 1980, c. 484). In exercising this discretion, the Board has adopted a policy which recognizes the great importance of expedition to the efficacious administration of the Labour Relations Act. In Labour Relations Bureau of Ontario General Contractors Association, [1979] OLRB Rep. 1036, at paragraph 8, the Board stated:

"The usual practice of the Board is to grant adjournments only on the consent of all of the parties to a proceeding. With respect to situations where one party is not prepared to agree to an adjournment, in the Baycrest Centre of Geriatric Care case, [1976] OLRB Rep. 432, the Board stated at page 433:

5. The Board policy with respect to adjournments has been capsulized in the Nick Masney case [1968] OLRB Rep. 823 (upheld in the Ontario Court of Appeal ¶70 CLLC 14,024) wherein the Board stated: '... the Board's decision to deny the respondent's request for an adjournment was based on the Board's practice to grant adjournments only on consent of the parties or where the request is based on circumstances which are completely out of the control of the party making the request and where to proceed would seriously prejudice such party i.e., where it is proven that a witness essential to the party's case is unable to attend because

of serious illness...

The powers of the Board with respect to adjournments were confirmed by the

Ontario Divisional Court in Re Flamboro Downs Holdings Ltd. and Teamsters Local 879 (1979), 1979 CanLII 1669 (ON HCJ), 24 OR. (2d) 400, at pages 404 and 405:

"Clearly, an administrative tribunal such as the Labour Relations Board is entitled to determine its own practices and procedures. Whether in a given case an adjournment should or should not be granted is a matter to be determined by the Board charged as it is with the responsibility of administering a comprehensive statute regulating labour relations. In the administration of that statute the Board is required to make many determinations of both fact and of law and to exercise its discretion in a variety of situations. In the case of a request for adjournment, it is manifestly in the best position to decide whether, having regard to the nature of the substantive application before it, the adjournment should be granted or whether the interests of the employer, the employees or the union who, as the case may be, oppose the adjournment should prevail over the party seeking it. As a matter of jurisdiction, it is for the Board to decide whether it should adjourn proceedings before it and in what circumstances.

This is not to say that there cannot be situations in which a refusal to grant an adjournment might amount to a denial of natural justice. There are circumstances in which that might be so: see, for example, R. v. Ontario Labour Relations Board, Exp. Nick Masney Hotels Ltd. [1970] 3 O.R. 461, 13 D.L.R. (3d) 289 (C.A.); Re Gill Lumber Chipman (1973) Ltd. and United Brotherhood of Carpenters & Joiners of America, Local Union 2142 (1973), 1973 CanLII 1231 (NB CA), 42 D.L.R. (3d) 271, 7 N.B.R. (2d) 41. It is necessary to examine the facts of each case to determine if the tribunal acted, as it must, in a fair and reasonable way. It must, of course, comply with the provisions of the Statutory Powers Procedure Act 1971 (Ont.) c.47, and afford the parties the opportunity to be present and be represented if they wish by counsel. But a party who has adequate notice of the hearing does not have a right to an adjournment and is not entitled to insist on one for his convenience or the convenience of his representative. It is for the Board to determine whether to adjourn on the basis of the obvious desirability of speedy and expeditious proceedings in labour relations matters, the background of the particular case, the issues involved, the reason for the request and other like factors.

It cannot be suggested that the Board may not in the exercise of is discretion adopt a general policy respecting adjournments of its proceedings: see The King v. Port of London Authority, Ex. p. Kynock, Ltd., [1919] 1 K.B. 176. That policy is obviously necessary to the proper administration of the Board's process...

In Nick Masney, supra, and Re Flamboro Downs Holdings Ltd., supra, the Courts found that there had been no denial of natural justice in circumstances where the Board denied adjournment requests because of the unavailability of counsel.

14. When the dates in May were being considered, a representative of Rino Zanette (1981) Ltd. was consulted and that firm received sufficient notice of the proceeding. By telex dated April 29, 1987, Mr. Coccimiglio advised the Board that the firm of Weiler, Maloney, Nelson no longer represented Mr. Rino Zanette. Even though Rino Zanette was unable to obtain counsel from that firm, there was no indication that any effort was made to obtain another lawyer. Mr. Firman apparently agreed to take the case with the knowledge of the previous commitments and there was no indication that Mr. Firman had made any attempt to make some other arrangements for the arbitration case. This was clearly a case where parties were requesting an adjournment either for their convenience or the convenience of counsel. If such considerations were to be determinative in dealing with adjournment requests, it would take forever to litigate cases before the Board. After considering the nature of the proceeding, the interests of the parties, and the reasons for the adjournment request, the Board was satisfied that this was not an appropriate case to exercise its discretion in favour of granting an adjournment. After making its ruling, the Board advised Mr. Firman that it would be prepared to accommodate him, if he was agreeable, by sitting late on the 19th, sitting in the evening of the 20 so that Mr. Firman could attend his arbitration case and then perhaps starting earlier on the 21st. All parties agreed to this suggestion. However, it was unnecessary to actually follow it for by the end of the hearing on the 19th, Mr. Firman advised the Board that he was able to secure the consent of the other side to adjourn the arbitration case.

15. After the Board made its rulings regarding the preliminary matters, Mr. Firman asked for and was granted some time to have discussions with counsel for Local 607. After a short time, Mr. Firman advised the Board that his clients were ready to proceed and he began to call his evidence. By mid-morning on the 21st, 444348 and Zanette Investments had completed calling their evidence. At that time, Mr. Firman requested that the matter be adjourned in order that he could keep the commitment he had referred to on the 19th. The Board indicated to Mr. Firman that on the 19th it had ruled against the request for an adjournment and had understood that he could take care of his conflict on the 21st. Since the Board was never advised of the nature of Mr. Firman's conflict on the 21st, the Board indicated to him that, if he so desired, he could advise the Board of his reasons for requesting an adjournment. Mr. Firman indicated that he had a meeting out of Thunder Bay to discuss a grievance with a client that might possibly go to arbitration and that this meeting had been cancelled once before. Local 607 opposed the adjournment. After recessing to consider the adjournment request, the Board advised Mr. Firman that his request for an adjournment was denied. This was clearly a situation where counsel requested an adjournment simply for his own convenience. After considering the interests involved and the reason for the requested adjournment, the Board was satisfied that there was no legitimate basis to warrant an adjournment at that stage of the hearing.

16. Having determined it would proceed, the Board called on Rino Zanette to give evidence. Rino Zanette had advised the Board earlier that day that he had talked to a lawyer in the firm of Weiler, Maloney and Nelson who had told him that he would be able to attend the hearing on ten minutes notice on May 21. When it was time to give his evidence, Rino Zanette asked for some time to call his lawyer and the Board accommodated him. Over the next hour, Rino Zanette made a number of calls to the lawyer's office and informed the Board of the responses he received. When he first called, he was advised the lawyer was at an arbitration hearing. When he called a second time, he was told the lawyer was on a long distance telephone call. After calling again, he was told that the office did not know where the lawyer was. At approximately 11.30 a.m., the Board advised Rino Zanette that it would accommodate him by taking an early lunch break and would return at 12.30 p.m. to continue the case whether counsel appeared for him or not. At 12.30 p.m. Mr. Paul Jasiura of Stasiv, Mitton & Smith appeared to represent Rino Zanette (1981) Ltd. and Sault Holdings. Mr. Jasiura indicated his retainer was limited to representing those respondents while Rino Zanette was testifying. The Vice-Chair advised Mr. Jasiura of the nature and stage of the proceeding and the hearing continued.

17. Reference to two matters which occurred during the May hearings are worth noting at this point. When the preliminary matters were argued on May 19, 1988, and when Mr. Firman began to argue about the appropriateness of having his clients made parties to the first referral, the Vice-Chair asked whether it was possible for the parties to agree to an amendment of the second referral in order to avoid much of the preliminary argument. Both Mr. Firman and Mr. Wahl indicated that their clients would not be prepared to agree to such an amendment. With both parties unprepared to agree, the proceeding continued.

18. At the end of the hearing day on May 21, the cross-examination of Rino Zanette was not completed. The Vice-Chair obtained some dates for the continuation of the hearing and offered them to the parties. Mr. Jasiura and Mr. Wahl left the room to call their office in order to check out the dates. Mr. Firman remained in the hearing room and examined his calendar. Prior to the other counsel returning to the room, Mr. Firman advised the Board that he had two conciliation meetings that were not continuations scheduled on the days offered by the Board. The Vice-Chair expressed the view that the panel may not view that type of a conflict as a sufficient basis for not proceeding on those days. Mr. Firman indicated he hoped the Board would recognize that, although he was in a firm, he was realistically a sole practitioner since he was the only member in his firm who did labour work. The Vice-Chair indicated that the discussion should await the return of the other counsel. When the other counsel returned, Mr. Wahl advised that he was not available for the suggested dates as a result of vacation plans. Mr. Jasiura indicated as well that he was on vacation at that time. The Board was advised that both vacations had been planned for some time and involved trips away from home. Taking into account the vacation plans of the two counsel as well as Mr. Firman's difficulties with the dates, the Board determined that it would not schedule the continuation of the hearing on those days. The Board then offered the parties the dates of August 5, 6 and 7 and all parties, including Mr. Firman, agreed that those dates were acceptable.

19. On August 4,1987, Mr. Jasiura advised the Board that Rino Zanette had been hospitalized. Local 607 was not prepared to consent to an adjournment of the hearing days scheduled for early August. When the hearing resumed on August 5, Mr. Jasiura asked for an adjournment and indicated he would be prepared to call evidence in support of the requested adjournment. Since Local 607 continued to oppose the adjournment, Mr. Jasiura called Dr. A. L. Moulson to give evidence. Dr. Moulson was cross-examined extensively by Mr. WahI. We do not propose to detail the evidence of Dr. Moulson. Very briefly, Dr. Moulson has been Rino Zanette's family physician and neighbour for many years. During the evening of August 3, 1987, Rino Zanette contacted Dr. Moulson at his home and after describing how he felt, Dr. Moulson immediately arranged for his admission to McKeller Hospital. Rino Zanette was diagnosed as having uncontrolled hypertension. After examining Rino Zanette on August 4, Dr. Moulson was of the view that Rino Zanette's blood pressure showed abnormal swings making him susceptible to a sl;roke or a heart attack. Dr. Moulson described the treatment Rino was receiving and expressed the opinion that he would not be discharged from the hospital until early in the following week. In making his argument, Mr. Wahl argued there was no evidence to support the adjournment request. He suggested the Board continue with the cross-examination at the hospital and that Rino Zanette's absence was further evidence in support of his contempt. After entertaining the parties submissions, the majority of the panel, Mr. H. Kobryn dissenting, ruled that it would adjourn the hearing as it related to the section 63 and subsection 1(4) application. The majority was satisfied that Rino Zanette had a medical problem requiring hospitalization. Continuing the hearing at the hospital would not be conducive to controlling Rino Zanette's blood pressure.

20. Virtually on the eve of the August 4 hearing date, the Board received the following letter from Mr. Firman dated July 29, 1987:

Dear Mr. Aynsley,

Further to the hearings in this matter which have been commenced against 444348 Ontario Limited and Zanette Investments Limited, we hereby request the panel of the Board that is seized with this matter to consider our submission contained herein that the panel is biased against the Respondents, 444348 Ontario Limited and Zanette Investments Limited, such that it cannot and should not continue with this hearing. We therefore respectfully request that the panel dismiss the action against 444348 Ontario Limited and Zanette Investments Limited, or alternatively, refer this matter to another panel of the Board for determination.

The grounds upon which this motion is made are as follows:

1. These proceedings apparently commenced with the filing of a grievance by the Labourers' International Union of North America, Local 607 against Reno Zanette Limited and Reno Zanette (1981) Ltd. and which grievance was filed on October 30, 1985. It should be noted that at this point in time, i.e. October 30, 1985, 444348 Ontario Limited and Zanette Investments Limited, were not named as Respondents.

2. The aforementioned grievance dealt with an alleged violation of the Collective agreement at various construction projects listed in Schedule "A" to the grievance and specifically:

(i) Commercial Building next to Marostica Motors, 10th Avenue, thunder Bay;

(ii) Arnone Transport Limited garage, Thunder Bay;

(iii) CNR Hostel, Atikokan;

(iv) Commercial Building, 1313 Brown Street, Thunder Bay;

(v) Motel Valencia, 105 Main Street, Atikokan.

3. The matter was then referred as a grievance to arbitration under Section 124 of the construction industry provisions of the Labour Relations Act and only Reno Zanette (1981) Ltd. was named as the Respondent. My clients, 444348 Ontario Limited and Zanette Investments Limited, were not named as Respondents at that time. In addition, the Board gave the matter a file number 2058-85-M.

4. Subsequently, in November of 1985, Mr. W. Jackson, an Officer of the Board, was appointed to confer with the parties to endeavour to effect a settlement of the grievance in this case. The letter from the Board appointing Mr. Jackson was dated November 18, 1985, and was addressed to the Labourers International Union of North America, Local 607 and Mr. Ronald Davis as Business Representative. In addition, the Board by way of letter of November 18, 1985, served a formal Notice of Hearing on the Labourers International Union of North America, Local 607 as Applicant and Reno Zanette (1981) Ltd. as Respondent indicating that the Hearing of this matter would occur on November 29, 1985, in Toronto.

My clients, 444348 Ontario Limited and Zanette Investments Limited, had not been named as Respondents to this point in time and therefore did not have the opportunity to avail themselves of the services of Mr. W. Jackson in an effort to resolve the grievance.

It is submitted that, with a matter as complex as this, my clients should have had the opportunity to have the services of a settlement officer, particularly when my clients were not present when proceedings commenced and were not named as Respondents at that time. Therefore, it would be difficult, if not impossible, for my clients to attempt to discuss settlement with the Applicants in the absence of a settlement officer, when evidence had already been tendered about which my clients had no knowledge.

In addition, settlement services of the Board are considered so integral a part of normal Board procedure, that to deprive any party of the right to such services is a breach of natural justice and fairness.

My clients, at the hearing of the Board on May 19, 20 and 21, 1987, asked the Board to appoint a settlement officer to confer with the parties but this request was refused by the Board, no particular reasons being given except that the Board had discretion as to whether or not settlement services were to be granted.

5. The Hearing originally scheduled for November 29, 1985, was subsequently rescheduled to occur on December 18, 1985, and once again, only Reno Zanette (1981) Ltd. was named as the Respondent.

6. The Board heard this matter and issued a decision on December 27, 1983, to the parties, Labourers International Union of North America, Local 607 as Applicant and Reno Zanette (1981) Ltd. as Respondent indicating that it was not prepared to grant the adjournment to the Hearing that was requested by counsel for the Respondent at that time. It should also be noted that apparently the Respondent had filed documents asking for judicial review of a different proceeding of the Board and which decision was rendered on January 27, 1984,

7. By way of decision dated January 27, 1986, the Board in a matter involving the Labourers International Union of North America, Local 607 as Applicant and Reno 2.anette (1981) Ltd. as Respondent indicated that the Respondent Company was bound by the Provincial Collective Agreement and was required thereby to utilize members of the Applicant Union for construction labourers' work for all sectors with respect to the six projects delineated, specifically:

(i) CNR Hostel, Atikokan near 109 White Street;

(ii) Commercial Building across the street from Marostica Motors, 10th Avenue, Thunder Bay;

(iii) Arnone Transport Limited garage, 235 Queen Street, Thunder Bay;

(iv) Halfway Motors Limited, Memorial Avenue, Thunder Bay;

(v) Commercial Building, 1313 Brown Street, Thunder Bay;

(vi) Building near the Valencia Restaurant, 105 Main Street, West, Atikokan.

Again, only Reno Zanette (1981) Ltd. was named as the Respondent at that time and with respect to that decision and accordingly, 444348 Ontario Limited and Zanette Investments Limited, did not have an opportunity to participate in those proceedings, never having been made a party as Respondent to them.

By that same decision, the Board deferred dealing with the amount of damages in the hope that the parties could agree upon an amount and if they were unable to do so, the Board was to remain seized of the matter of damages.

Thus, at this point in time, it was determined that Reno Zanette (1981) Ltd. was a successor or related employer to Reno Zanette Limited and only the question of damage'~ was to be assessed. Of significance is the fact that the question of liability had already been determined, only the question of damages remained, and my clients, 444348 Ontario Limited and Zanette Investments Limited had not been named as parties to the proceedings or notified of the proceedings.

8. On March 12, 1986, Mr. Steven WahI wrote to the Ontario Labour Relations Board with respect to this file number 2058-85-M indicating that the parties had not been successful with respect to the issue of quantum of damages and therefore requested that the matter be relisted for Hearing on a date to be fixed by the Registrar in consultation with the parties.

My clients, 444348 Ontario Limited and Zanette Investments Limited, were not consulted by Mr. WahI or the Board with respect to the dates to be set by the Registrar because of course they were not parties to the proceedings. To therefore set dates at this point in time without consultation with my clients and establishing a date which is suitable to all is inequitable and a breach of natural justice.

9. On June 27, 1986, Mr. Paul Gordon of Gordon, Carter & Johnson, solicitors in Thunder Bay, wrote to Mr. Steven Wahl of Koskie & Minsky confirming that an agreement had been made to adjourn the proceedings at that time since Mr. Reno Zanette had been confined to a medical facility in Centre City, Minnesota, and was therefore unable to participate in the Hearing scheduled by the Board for June 30, 1986. a number of conditions were also set out in that letter of confirmation which listed several undertakings of Mr. Gordon on behalf of Reno Zanette (1981) Ltd.

444348 Ontario Limited and Zanette Investments Limited, were not named as Respondents at this point in time and therefore were not included in any adjournment proceedings or in any consent to adjournment of the proceedings.

10. Mr. Steven Walil subsequently wrote to the Board on July 31, 1986, indicating that he wished the matter of quantum of damages to be set down by the Board for hearing on September 8,9, 15, 16, 17 or 29, 1986.

444348 Ontario Limited and Zanette Investments Limited were not consulted with respect to the suggested dates and were not listed as parties to the proceedings at this time. The Board subsequently issued a decision on November 19, 1986, dealing with the refusal of Mr. Reno Zanette to answer several questions put to him at the Hearing scheduled and heard on October 27, 1986. Since the matter was not concluded at that time the Board decided that the issue would continue on December 15, 1986, in Thunder Bay and the Board would hear further submissions from the parties on the issue of whether or not the Board should find Mr. Reno Zanette in contempt of the Board and if so, what penalty it would impose on Mr. Reno Zanette.

11. On January 6, 1987, Mr. Steven Walil wrote to the registrar indicating that the testimony at the Hearing on December 15, 1986, revealed that other corporations were associated or related businesses or activities under common direction and control with Reno Zanette Limited and/or Reno Zanette (1981) Ltd. with respect to their construction activities and specifically, these corporations were:

444348 Ontario Limited;

Zanette Investments Limited; and

Sault Holdings Limited.

At that time, Mr. WahI requested the Board to amend the operative grievance to assert a violation against each of the above-mentioned corporations jointly and severally and that the Board apply Section 63 and/or 1(4) of the Labour Relations Act and grant the appropriate relief. He also requested that notice be served on each of the above corporations.

This was the first time that a request had been made to add 444348 Ontario Limited and Zanette Investments Limited as parties to this proceeding. This of course was done at a time after the liability with respect to the grievance had been determined and the only matter to be decided was the quantum of damages. It is submitted that it is too late in the day for the Union to attempt to expand the grievance at this point in time when in fact my clients, 444348 Ontario Limited and Zanette Investments Limited, were never notified or named as Respondents prior to this time, and therefore did not have an opportunity to defend against the grievance. To allow these patties to be added at this point in time would be a breach of natural justice since of course the parties do not know the evidence that has been introduced against them or Reno Zanette (1981) Ltd. to date.

In that same letter, Mr. Wahl indicated that the Board was to resume the Hearings on March 25, 26 and 27, 1987, but my clients, 444348 Ontario Limited and Zanette Investments Limited, still did not receive a copy of Mr. Wahl's letter of January 6, 1987, at this time and they were never informed of the resumption of Hearings on March 25, 26 and 27, 1987.

12. By way of letter of February 4, 1987, Mr. Wahl indicated that he had requested that the grievance be expanded to include 444348 Ontario Limited and Zanette Investments Limited and Sault Holdings Limited and the construction projects involved were also expanded to include 725 5. James Street, Thunder Bay, Ontario and an apartment building construction project at 800 Gordon Avenue, Thunder Bay, Ontario. The top portion of this letter indicates that the letter was "Delivered" to all of the companies named but 444348 Ontario Limited and Zanette Investments Limited never did receive such letter and it was not delivered to them.

Mr. WahI also indicated in that same letter that the Hearing was to be scheduled on March 25, 26 and 27, 1987, and once again, my clients had no input into the time of the Hearings with respect to this matter.

13. On April 30, 1987, my clients, 444348 Ontario Limited and Zanette Investments Limited, were served with registered documents which indicated that the Hearing in his matter was scheduled to resume in Thunder Bay on May 19, 20 and 21, 1987, and in addition, also included was a copy of the original letter of February 4, 1987, from Mr. Wahl and which date had been crossed out as well as the word "Delivered" crossed out and in its place, was the date April 29, 1987, and the word "Registered".

However, once again, my clients were not involved in the setting of the dates for this matter and such dates appear to have been suggested unilaterally by the Union.

To the date of May 19, 1987, my clients were only informed that the Hearing in this matter was to continue in Thunder Bay on May 19, 20 and 21, 1987, and that the matter involved the issue of damages arising by way of a grievance alleging a violation of the Collective Agreement as well as a Section 63 and Section 1(4) application by the Union. My clients had only received this information when served on April 30, 1987, and therefore, because of the complexity of the matter and the need to discuss the issue more fully with counsel as well as meet with a settlement officer to discuss the possibility of resolution, an adjournment was requested to obtain additional time and documentation to fully deal with the case. In addition, I had a conflict with other matters on May 19, 20 and 21, 1987, and therefore asked the Board to adjourn the matters at this time. However, the response of the Board was only to refuse such request, in spite of the above considerations.

14. To the date of May 11, 1987, my clients had not formally received a copy of the grievance which started these proceedings. In addition, my clients had not participated in any proceedings with respect to the grievance, never having been set down as a party to the proceedings until after the question of liability against Reno Zanette (1981) Ltd. had been determined and after the question of quantum of damages was found to be not capable of resolution by other parties. To therefore allow the grievance to be expanded so as to include my clients as parties is an obvious breach of natural justice as well as being contrary to any of the principles of grievance administration.

15. Furthermore, at the hearing in Thunder Bay on May 19, 20 and 21, 1987, it was submitted to the Board that these dates were not convenient to me or to my clients and since such dates represent a continuation of the previous Hearing, it was submitted that the Board practice usually is to confer with the parties with respect to the establishment of dates which are mutually convenient. Such dates had not been established on a mutually-convenient basis on this occasion and therefore a request was made to adjourn the said proceedings for these reasons. However, the Board refused to grant such adjournment thereby resulting in further prejudice to my clients, 444348 Ontario Limited and Zanette Investments Limited because of the short notice given of the date of the hearing and because of the conflict referred to above.

16. I also submitted at the hearing on May 19, 1987, that the matter of a violation of the Collective Agreement as specifically set out in this grievance filed could not now be relitigated and could not involve my clients since they were never named as Respondent’s in the first instance. To allow my clients to be added as parties at this stage in the proceedings would be analogous to having a Supreme Court action decided on the basis of liability and then allowing multiple parties to be added after the question of liability has been decided. Simply put, this is so obvious a breach of natural justice as to not warrant any further comment.

However, the Board not only refused to consider this request but went further and suggested to the Union that it should consider amending the grievance so as to add my clients, 444348 Ontario Limited and Zanette Investments Limited, as Respondents with respect to an alleged violation of the collective agreement and also to add to the job sites at which it was alleged the violations occurred.

The Union subsequently, by way of letter of June 1, 1987, made such request to the Board.

It is submitted that to make such a suggestion to the Union is obviously a breach of natural justice and unfair to the Respondents since one party is favoured over another.

17. My clients have also not been given any particulars with respect to the Section 63 application for successor rights or the Section 1(4) related employer application nor have they any knowledge about the evidence introduced to date and since the Board procedure is to have the Respondent proceed first, my clients are unfairly disadvantaged and prejudiced in not knowing the particulars which they are to address in any hearing, if they are to do so at all and in not knowing the evidence which has been introduced.

18. At the hearing on May 19, 20 and 21, 1987, the Board discussed further dates for continuation of the hearing. I indicated to the Board that certain suggested dates were not suitable because of prior work commitments; the Board disregarded such comments but considered and respected Union counsel's submission that certain dates were not suitable as a result of a family vacation that he had planned.

It is submitted that this fact is further evidence of bias and breach of natural justice expressed toward the Respondents 444348 Ontario Limited and Zanette Investments Limited. Simply put, the Board has expressed such animosity toward the said Respondents that any possibility for an unbiased decision is non-existent.

19. In summation, it is submitted that the Board should disqualify itself from any further hearings with respect to this matter as against the Respondents 4-44348 Ontario Limited and Zanette Investments Limited, because it is biased against the said Respondents and has made incorrect applications of law. In particular, the Board:

(i) refused to allow the Respondents the opportunity to meet and consult with a settlement officer to attempt to resolve the matter;

(ii) allowed the Respondents 444348 Ontario Limited and Zanette Investments Limited, to be named as respondents or alternatively become involved in the matter after the action had been commenced by the Union and after the question of liability had been determined against Reno Zanette (1981) Ltd. and when the question of quantum of damages was found to be not capable of resolution by parties other than my clients;

(iii) allowed the grievance to be expanded and even suggested the same to the Union when the Respondents 444348 Ontario Limited and Zanette Investments Limited, were not named as parties in the initial grievance;

(iv) compelled the Respondents 444348 Ontario Limited and Zanette Investments Limited to proceed with the hearings on May 19, 20 and 21, 1987, despite the fact that the same Respondents were only served with original documentation from the Board on April 30, 1987, and despite the fact that counsel retained by the Respondents had other work commitments for the said scheduled time of May 19, 20 and 21, 1987;

(v) did not allow the opportunity to the said Respondents to participate in the setting of mutually-convenient dates for such Board hearings either with respect to the dates of May 19, 20 and 21, 1987, or further subsequent dates;

(vi) has placed the said Respondents in an untenable and prejudicial position in attempting to carry on settlement discussions because the said Respondents do not know the evidence that has been introduced to date and the damages that are allegedly said by the Union to have been put forth in evidence in prior proceedings before the said Respondents were added to the proceedings. As a result, the said Respondents have been unable to discuss, with any accurate knowledge, possible settlement with the Union since they have no knowledge of the evidence that had been introduced involving either the question of liability or the question of damages prior to the said Respondents' being added to the action.

For all of these reasons, it is submitted that this proceeding by the Union is so prejudicial, inequitable and a breach of natural justice to the said Respondents as to require that the case be dismissed against the said Respondents altogether with respect to the claim by the Union of successor rights under Section 63 and related employer allegations under Section 1(4) of the Labour Relations Act and also with respect to any damages arising from grievances filed by the Union.

20. With respect to the question of bias and breach of natural justice, the Board is referred to the following excerpt from Natural Justice in Canada by Wesley Pue (Butterworths, 1981) at page 119:

"In order that a person may have a fair hearing it is essential that the decision-maker not approach the particular problem with a predisposition to decide one way or the other: it is necessary that a tribunal should be impartial, fearless and free from bias so as to be able to do its work without fear or favour and with an objective view of things. Canadian Law thus enforces the rule against bias. Although often referred to be the maxime nemo judex in re sua (which literally prohibits a person from being judge in his own cause), the prohibition extends to prevent a person fiom assuming the role of a judge if there is any reason whatsoever to suspect him of partiality."

It is submitted that the test if whether a reasonable person would believe there to be a real danger of bias (see Re Greyhound Lines of Canada Ltd. v. Motor Transport Board (1977) 1977 ALTASCAD 237, 4 Alta. L.R. 280 (Alta. S.C.A.D.) referred to at page 120 of Pue's book.

The law imposes a duty on anyone called upon to decide anything under a statute to act in good faith and with an open mind not foreclosed to argument. (Re Franklin v. Minister of Town and Country Planning (1948) A.C. 87 (H.L.); (Board of Education v. Rice (1911) A.C. 179 (H.L.).

21. In cases other than those involving allegations of direct pecuniary interest, the courts have defined their role as being one of ascertaining whether the facts complained of could give rise to a reasonable apprehension of biased appraisal and judgement of the issues to be determined".

22. For all of these reasons, it is suggested that the said Respondents cannot obtain a decision from this tribunal which is free of any and all bias for all of the reasons stipulated. As a result, it is respectfully submitted that this action against the said respondents 444348 Ontario Limited and Zanette Investments Limited, be dismissed or alternatively, that the matter be referred to another panel of the Board.

Yours truly,

G. Lorne Firman

21. At the hearing on August 6, 1987, the Board entertained the representations of 444348 and Zanette Investments, and Local 607 with respect to the issues of bias and breach of natural justice. After consulting with Rino Zanette, Mr. Jasiura agreed on behalf of his clients to the following procedure. Mr. Jasiura would relay to Rino Zanette the arguments made by the other counsel and Rino Zanette would have until August 14 to make submissions to the Board in writing on those issues. Rino Zanette did file his written submissions with the Board prior to the deadline.

22. Mr. Firman did not attend the hearing on August 5 and 6. Mr. Buset, a lawyer in the same firm, appeared to represent 444348 and Zanette Investments. Although Mr. Buset did not withdraw the allegations contained in Mr. Firman's letter of July 29., the focus of his comments were directed to one natural justice issue. It was his submission that this panel should not deal with the section 63 and subsection 1(4) application as against his clients since it was the same panel before whom Rino Zanette refused to answer questions. It was suggested that the panel would be frustrated with Rino Zanette and that this would impact on the Board's perception of his credibility. It was argued that this frustration would spill over and affect his clients. It was for this reason that Mr. Buset suggested the present panel should not deal with the section 63 and subsection 1(4) application.

23. In arguing the panel was biased and breached the rules of natural justice, Mr. Buset was placed in a difficult position. He had not participated in the May 1987 hearings and did not prepare the letter of July 29. Mr. Buset was asked why the challenge to this panel based on his oral submission had not been made in May rather than after three days of hearing and on the eve of the hearing in early August. Mr. Buset was quite surprised by this question since he had understood that a challenge had been made to the present panel in May. When asked why it took over two months to make the allegations contained in the letter of July 29, Mr. Buset said he had no explanation for the delay. Regarding the appointment of a Board Officer, Mr. Buset was unable to answer the questions of why a settlement officer was not requested during the period of over two months between hearing dates or why there had not been some indication from his clients that the appointment of a Board Officer would serve a useful purpose. Mr. Buset was quite frank in admitting he was unaware of much that occurred at the May hearing. He was unaware that the Board offered to accommodate Mr. Firman's arbitration conflict by rearranging the hours of the hearing. He was not aware that the Board accommodated Mr. Jasiura as well as Mr. Wahl when canvassing continuation dates on May 21. When he was advised of the Board's rulings in May favouring his clients, of which he was unaware, and asked whether such information affected his submissions, Mr. Buset had no comment. It is unnecessary to detail any further the fact that Mr. Buset was not in the best position to argue the bias and breach of natural justice issues.

24. The submissions of Rino Zanette were as follows:

Re File Number 2058-85-M and 0343-87-G. 1 wish to submit the following on the issue of bias. I fought long and tough in the earlier proceedings on behalf of Zanette 1981 Limited. Adverse findings were made against me then, including contempt proceedings. Now for Fault [sic] Holdings the Board hearing s.63 and 1(4) should not assess my credibility and the merits of the case with their minds being tainted by previous determinations against me personally and my other companies. The bias is especially noticeable as against Board Member Mr. Koburn [sic] who dissented even on a request for adjournment based on medical grounds. He was on the Board which determined the successor rights in the earlier proceedings to which established successor rights between Zanette Limited and Zanette 1981 Limited.

Zanette 1981 Ltd. and Fault [sic] Holdings Ltd. per Rino Zanette.

25. After considering the submissions contained in the July 29 letter, the oral submissions made on August 6 and Rino Zanette's written submission, the Board advised the parties orally on August 17, the next hearing day following August 6, that it denied the motion made by 4443480 and Zanette Investments for the dismissal of the applications and the request to refer the matter to another panel for determination. The reasons for this ruling are as follows.

26. Dealing first with the oral submission made by Mr. Buset, the Board was satisfied that there was no reason to disqualify itself simply because the panel had to deal with a situation where Rino Zanette refused to answer some questions. Counsel for 444348 and Zanette Investments was aware of this situation prior to the hearing in May yet this matter was only raised after three days of hearing and on the eve of the hearing in early August. The panel was not frustrated by Mr. Zanette's conduct. He appeared in December, 1986 and answered all relevant questions put to him and at that time the Board determined it would not hear argument on the contempt issue until the end of the proceedings. Credibility may be an issue in the section 63 and subsection 1(4) part of the hearing. However, the Board was satisfied that it would be in a position to make its factual determinations simply on the basis of the evidence it heard during the hearing on the section 63 and subsection 1(4) application without regard to what occurred when it heard evidence relating to the first referral. With regard to Rino Zanette's written submissions, the Board was satisfied that Mr. Kobryn's participation in a January, 1984 decision which flowed from a hearing in which Rino Zanette did not attend and Mr. Kobryn's dissent regarding the adjournment request based on medical grounds in August 1987 should not cause this panel to disqualify itself.

27. Although counsel did not treat the allegations contained in the letter of July 29 seriously on August 6, the Board does consider such matters seriously and will briefly respond to them.

Most of the matters raised in the July 29 letter were contained in the May 11 letter and addressed at the hearing on May 19, 1987. The main concern expressed in the July 29 letter relates to Local 607's request to expand the grievance giving rise to the first referral and to add 444348 and Zanette Investments as parties to the first referral thereby making Mr. Firmart's clients a party to a proceeding in which liability had already been determined. After the Board made its rulings on May 19, Mr. Firman indicated he was confused and the rulings were repeated for his benefit. The main thrust of the July 29 letter indicates that Mr. Firman continued to fail to appreciate the nature of the Board's rulings. On May 19, the Board refused Local 607's request to expand the grievance giving rise to the first referral and ruled it would not add Mr. Firman's clients as parties to the first referral. The Board also ruled it would not consolidate the section 63 and subsection 1(4) application with the first referral. Since it accepted Mr. Firman's submission that his clients did not have adequate notice of the second referral, the Board ruled it would not proceed to hear that referral at that time. The Board made it quite clear that the only matter it would proceed with as against 444348 and Zanette Investments was the section 63 and subsection 1(4) application. The Board specifically noted that any evidence it heard prior to May, 1987 would not be relied on in the section 63 and subsection 1(4) proceeding. This resulted in Local 607 introducing a number of exhibits in the section 63 and subsection 1(4) matter which it had filed previously during the hearing of the first referral. Simply put, the Board did not tie in Mr. Firman's clients to the first referral. In fact, the proceeding against Mr. Firman's clients was kept quite separate from the first referral. When the Board eventually ordered a specific amount of damages in the first referral, it did not make the order against Mr. Firman's clients. Therefore, with regard to the main thrust of the submissions set out in the July 29 letter, the factual basis relied upon in support of the allegation does not exist. The Board was satisfied it did not breach the rules of natural justice in the manner in which it proceeded with the section 63 and subsection 1(4) application against 4~14348 and Zanette Investments.

28. The Board did make some rulings on May 19 and 21 which did not favour Mr. Firman or his clients. It determined that Mr. Firman's clients had adequate notice and particulars of the section 63 and subsection 1(4) application. It determined that it would not adjourn the hearing in order to appoint a Board Officer, nor would it adjourn the proceeding because the dates were not set in consultation with Mr. Firman's clients or because Mr. Firman had a conflict. The reason for these rulings were provided earlier and need not be repeated. To the extent that the letter of July 29 implicitly requests reconsideration of these rulings, such request was denied. Section 106(1) of the Act provides the Board with jurisdiction to reconsider its decisions and the Board requires that such requests be made promptly. In order to avoid prolonged litigation, the Board exercises its reconsideration power carefully. In the following paragraph in The Corporation of the City of Ottawa, [1982] OLRB Rep. Nov. 1698, the Board explains its practice when faced with reconsideration requests:

Reconsideration is therefore generally restricted to allowing a party to adduce evidence or make representations which it did not have a previous opportunity to raise, and nol to permit relitigation of issues by a party which, having received an adverse decision, now feels that a stronger case could have been presented.

The matters referred to in the July 29 letter as noted above were raised and argued on the hearing dates in May. The implicit requests for reconsideration were made over two months after the rulings were made with no explanation for the delay. Since no new matters were raised relating to the issues noted above, the Board found that there was no basis for it to reconsider its rulings.

29. To the extent that Mr. Firman relies on the Board's rulings as evidence of bias or breaches of natural justice, the Board notes the following. Some of the Board's rulings on the preliminary issues favoured Mr. Firman's clients, some did not. With respect to all of its rulings, the panel considered the circumstances, the parties' submissions and, after recessing to consider the matters, determined what was appropriate in the circumstances given the statute we administer and Board practice. The Board was not convinced that any of its rulings demonstrated bias or breached the rules of natural justice.

30. There are two other matters raised in the July 29 letter which require some comment. The Board did not suggest to Local 607 that it amend the grievance giving rise to the first referral as alleged in paragraph 16 of the July 29 letter. The Vice-Chair made a comment to Mr. Firman while he was making his submissions and the comment concerned the grievance giving rise to the second referral in which Mr. Firman's clients were named. The comment was made in the hope the parties would agree to amend the second grievance in order to avoid spending time on preliminary matters. Mr. Firman was not receptive to the suggestion nor was Mr. Wahl and the submissions continued. In making the suggestion, the Board was attempting to move the proceedings along. Local 607 did subsequently apply to amend the grievance giving rise to the second referral. However, the Board never did deal with the second referral. The comments at paragraph 18 of the July 29 letter are also inaccurate. When the discussion of further dates occurred, the Board considered the difficulties each counsel had. What was determinative for the Board was that counsel for Local 607 and Mr. Jasiura had conflicts as a result of planned vacations. The Vice-Chair had earlier expressed the view to Mr. Firman that his conflicts might not cause the Board to disregard the suggested dates. Given the nature of the conflicts of the other counsel, the Board did not have to decide whether Mr. Firman's conflicts alone would cause it to reject the dates. The Board was satisfied that both of these matters did not support the allegation of bias and breach of natural justice.

31. Since the hearing on the section 63 and subsection 1(4) application was unable to proceed on August 5, 6 and 7 due to Rino Zanette's illness, the Board spent some time on August 5 and continuing on August 6 discussing possible continuation dates with counsel. A number of dates in the following months were canvassed. The only date all counsel could agree on was August 17. The Vice-Chair expressed the view that since counsel were unable to agree on dates, it appeared to the Board that dates would have to be fixed on a peremptory basis. When further efforts failed to obtain agreement on dates, the Board advised the parties that it would fix peremptory dates. The parties did not object to this procedure. The Registrar subsequently advised the parties that the hearing would continue on August 17, 31, September 1, 22 and 23.

32. By at least August 13, 1987, counsel for Local 607 advised the Board he was unavailable on August 17, 31 and September 1, provided reasons for his unavailability and indicated further representations would follow. Subsequently, counsel for Local 607 advised the Board that all parties had agreed to adjourn the hearing and requested leave of the Board not to proceed on August 17, 31 and September 1. After considering the request, the Board advised the parties that it would not adjourn the hearing. The Board will usually adjourn a hearing on the consent of the parties. However, in this case, the dates in question had been fixed by the Board on a peremptory basis after it experienced considerable difficulty in obtaining the agreement of counsel to dates. Illustrative of the difficulty with counsel's schedules is the fact that all parties on August 6 indicated August 17 was acceptable but a week later Mr. Wahl had a difficulty with the day. Taking into account that the dates were set on a peremptory basis and the reasons for which Mr. Wahl requested the adjournment, the Board, as master of its own procedure, determined that it would not adjourn the hearing even in the face of the parties consent to do so. Before it would agree to adjourn peremptory dates, the Board would require exceptional circumstances which it found did not exist in this case. The parties attended with counsel on August 17, no discussion occurred concerning the denial of the adjournment and the hearing continued. The matter was not completed on August 17 and was to continue as previously scheduled on August 31.

33. When the hearing resumed on August 31, Rino and Robert Zanette requested an adjournment. Rino Zanette advised the Board that certain lawyers, including Mr. Coccimiglio, left the firm of Weiler, Maloney, Nelson and these lawyers advised him that they could not practice law until the 16th of September. On August 21, Mr. Coccimiglio agairt advised the Board that the firm of Weiler, Maloney, Nelson was not representing Rino Zanette in this matter. On August 27, the Board received a telex from Robert Zanette in which he advised the Board that he discharged his lawyer, required some time to retain new counsel and requested an adjournment. Mr. Firman called the Board on August 28 to advise that he will not be acting on behalf of Robert Zanette. At the hearing, Robert Zanette explained he was unhappy with the representation he was receiving from Mr. Firman and that after the hearing on August 17, he realized he had no confidence in Mr. Firman and discharged him. He discovered Mr. Firman had no construction experience and was unable to provide him with satisfactory answers to certain questions. Robert Zanette explained he was unable at that point to retain another lawyer. Robert Zanette advised the Board that Mr. Firman explained to him that he ran the risk of the Board proceeding even if he had no lawyer. Robert Zanette also advised the Board that he would not represent his companies at the hearing. At the hearing, Local 607 opposed an adjournment. After entertaining the parties submissions and after recessing to consider the matter, the Board orally ruled at the hearing that it denied both adjournment requests. The Board indicated that it considered each request and the grounds for each separately and concluded that the circumstances were such that it would be inappropriate to grant an adjournment.

34. In paragraph 13 of this decision, the Board referred to a number of cases which disclose the Board's practice concerning adjournment requests. Given the nature of the adjournment requests made on August 31, reference to two cases is warranted. In Re Flamboro Downs Holdings Ltd., supra, the Divisional Court held that the Board's refusal to grant an employer an adjournment in circumstances where the employer had switched lawyers two clays before the hearing and the recently retained lawyer was not available for the hearing did not amount to a denial of natural justice. In Joe Portiss, [1983] OLRB Rep. Sept. 1554, a complainant requested an adjournment on the ground that between the first and second day of hearing he had discharged his counsel and needed time to retain and instruct a new lawyer. The following comments and reasons of the Board for denying the adjournment are applicable to the circumstances before us.

It is the general practice of the Board not to grant an adjournment unless it is agreed to by the parties, except in extraordinary circumstances. Extraordinary circumstances would generally include unforeseen events beyond the control of a party, such as illness ot difficulties in travel due to severe weather. The Board does not generally adjourn a hearing on the request of a party for time to seek legal counsel, particularly where that party had ample notice of the hearing and a reasonable time to retain and instruct counsel beforehand. In this case Mr. Portiss had, by his own admission, some nine days between his disagreement with his former counsel and the resumption of the compensation hearing. We do not see in these circumstances any reason to grant an adjournment merely because the complainant was not entirely satisfied with the Board's interim rulings. Among the items of dissatisfaction Mr. Portiss cited the failure of his counsel to adduce evidence to explain why Mr. Portiss voluntarily took a layoff from a job with Combustion Engineering. Given the Board's determination in paragraph .30 of its decision of July 11, 1983 that that event would weigh against Mr. Portiss in the assessment of compensation, we are satisfied that he was or should have been aware of that outcome ovet two months ago. In our view he had ample time to attempt to retain and instruct counsel, or to weigh and accept the alternative of completing the hearing with the lawyer he initially retained. The Board is also mindful of the prejudice which an indefinite adjournment could cause the respondent union, whose membership has obviously been divided by the ongoing controversy surrounding this complaint. Fairness to both parties and concern for the labour relations process require that this matter be disposed of without undue delay, in keeping with the Board's normal rules of procedure. For the foregoing reasons the Board ruled at the hearing that it would not depart from its normal procedures and that Mr. Portiss' request for an adjournment was denied.

35. As noted earlier, August 31 and September 1, 1987 were dates which the Board fixed on

a peremptory basis. The hearing was at the stage where evidence had been called on behalf of Robert Zanette's companies and Rino Zanette's companies and Local 607 was about to call what was described as a little evidence. This was at least the third occasion during the course of the proceedings in which Rino Zanette requested an adjournment in order to obtain counsel. He appeared with counsel on August 17 and had adequate time to ensure he would have counsel for the remainder of the case. It was only after a number of days of hearing and when the matter was close to completion that Robert Zanette discharged his counsel. He took this action with the knowledge that the Board might not grant an adjournment. The Board was satisfied that Robert Zanette had reasonable time to retain and instruct counsel. In considering the interests of both sides, the Board determined that the circumstances did not warrant granting an adjournment. The hearing proceeded and was completed on September 1. Rino Zanette participated in the hearing and Robert Zanette, although present, elected not to participate.

36. Before turning to the substance of the section 63 and subsection 1(4) application, the Board will address three matters raised by counsel for Local 607. These matters concern the second referral and the contempt issue which were both raised in final argument and the issue of costs which came up earlier in the proceeding. The Board does not propose to set out the extensive and able submissions of counsel in these three areas.

37. Counsel argued that the Board should determine the merits of the second referral based on the evidence it had before it. Counsel appreciated that the Board ruled against consolidating the second referral with any other application before it earlier in the proceeding but submitted in final argument that it was now open to the Board to treat the second referral as having been heard together with the other applications. It was submitted that the respondents to the second referral are not prejudiced by such an approach and that a speedy determination of a section 124 application warranted the Board adopting such a procedure. The Board is satisfied that it would be inappropriate and unfair to the respondents in the second referral to adopt such an approach. As noted earlier, the Board determined on May 19, 1987 that it would not consolidate the second referral with the other applications before it since it was satisfied that the respondents did not receive adequate notice of that referral in the circumstances. At that time, the Board indicated it would not proceed to hear evidence relating to the second referral and at no time during the course of the evidence did a party request or did the Board indicate that it would hear the second referral together with the other applications. Therefore, the respondents were not adducing evidence with the knowledge that the matters were being heard together. In the normal case, procedural determination concerning the consolidation or the hearing together of matters are made prior to evidence being called. The respondents to the second referral did not agree to counsel's submission and absent agreement, the Board will not adopt the approach advocated by Local 607's counsel.

38. At the December 15, 1986 hearing, the Board determined it would entertain submissions at a later date relating to the issue of whether or not it should find Rino Zanette guilty of contempt in the face of the Board and, if so found, what penalty it should impose. Counsel for Local 607 forcefully submitted that Rino Zanette should be found guilty of contempt and incarcerated for a period of time. Counsel referred to the initial refusal to answer questions and also to Rino Zanette's subsequent conduct, specifically his constant attempt to delay the proceeding by asking for adjournments. Counsel argued that Rino Zanette consistently "thumbed his nose" at the Board and that the only appropriate response was a period of incarceration. Counsel suggested Rino Zanette remain in jail until he paid the damages owed to Local 607. The Board has carefully reviewed Rino Zanette's conduct during the course of the hearing and counsel's submissions. On October 27, 1986, Rino Zanette did refuse to answer certain relevant questions when directed to do so by the Board. The Board adjourned the hearing at that time in order to allow Rino Zanette the opportunity to consult with counsel. Rino Zanette appeared with counsel on December 15, 1986 and answered all of the relevant questions put to him. In Labour Relations Board for Saskatchewan v. Daschuk Lumber Ltd. et al, 1976 CanLII 967 (SK CA), [1976] 5 W.W.R. 562 (Sask. C.A.), the Court made the following comments at pages 565 and 566:

The general practice is that a person in contempt is usually relieved from the consequences of that contempt when he purges himself of the contempt by doing that which he neglected or wilfully refused to do.

Whether or not that general practice is made applicable in a particular case lies with the discretion of the judge disposing of the application. Here the learned chambers judge felt that he should follow this practice and I see no grounds upon which this court should interfere with the discretion he so exercised.

In exercising its discretion, the Board is satisfied that Rino Zanette purged himself of the contempt by answering all relevant questions put to him on December 15, 1986 and that, under the circumstances, he should be relieved from the consequences of that contempt. The Board is also satisfied that Rino Zanette's subsequent conduct did not constitute contempt. Accordingly, Local 607's motion on the contempt issue is denied.

39. Although not raised in final argument, Local 607 had reqttested at earlier stages an order from the Board directing certain respondents to pay Local 607's costs. For instance, when the October, 1986 hearing was adjourned as a result of Rino Zanette's failure to answer certain questions, Local 607 argued it was entitled to costs. The Board's general practice is to deny the successful party its costs. The reasons for this approach have been set out in a number of cases and need not be repeated here. See, for example, Silknit Limited, [1983] OLRB Rep. Nov. 1913 and [Gerald Lecuyer, 19851 OLRB Rep. July 1099. The Board is satisfied that the circumstances before it do not warrant a departure from the Board's normal practice.

40. In a decision dated September 17, 1987, dealing with the first referral, the Board directed Rino Zanette (1981) Ltd. to pay forthwith the sum of $44,884.10 to Local 607 as a result of its breach of the relevant collective agreement.

41. We turn now to the section 63 and subsection 1(4) application.

42. As indicated earlier, it was during the course of the hearing to determine the amount of damages owing to Local 607 by Rino Zanette (1981) Ltd. that Local 607 became aware of the fact that certain entities with connections to the Zanette family may have been involved in construction activity. This prompted Local 607 to request relief under section 63 and subsection 1(4) of the Act during the December 1986 hearing.

43. The Board heard extensive evidence relating to the business endeavours in which Rino Zanette and other members of his family have been engaged over the years. Sault Holdings is a land holding company. Rino Zanette (1981) Limited is a business run by Rino Zanette essentially as a masonry subcontractor. Zanette Investments is owned by Rino and Robert Zanette on an equal basis and is described by them as an investment company. 444348 is owned by Robert Zanette who describes this company as a real estate development company. Although not respondents, the Board also heard evidence concerning Terra Krete Limited ("Terra Krete"), Rino Zanette Limited and 464011 Ontario Ltd. c.o.b. as Best Building Products ("Best Building Products").

44. Sault Holdings was incorporated in 1972 with Rino Zanette and A. Durante as shareholders. Rino Zanette Limited, a masonry subcontractor, was involved in Sault Lookout in the early 1970's on a high school project. Rino Zanette was encouraged to build one or two apartment buildings in Sault Lookout and it was for this purpose that Sault Holdings was incorporated. Sault Holdings acted as an owner for the apartment projects. It did not have any employees perform any construction work and sub-contracted out all of the work. Rino Zanette Limited did some of the masonry work. In 1977, all of the shares of Sault Holdings were transferred to Rino Zanette. In 1978, Sault Holdings amalgamated with two other entities to continue as one corporation under the name Sault Holdings. Rino Zanette and his wife are the directors of the amalgamated entity which continued as a holding company. Sault Holdings is the central feature of a family trust controlled by Rino Zanette and his wife. The beneficiaries of the family trust are all five Zanette children. Robert Zanette has no control of the trust.

45. Sault Holdings has owned land and buildings and leased them to other Zanette companies. From at least the early 1960's until approximately 1983, Sault Holdings owned property at 1200 Kam Road in Thunder Bay. For most of that period of time, it leased the property to Terra Krete, a company owned by Rino Zanette which manufactured and sold concrete products. When Terra Krete went out of business, Sault Holdings leased the property at 1200 Kam Road to Best Building Products. This latter entity manufactured and sold concrete products as well and was owned, in part, by Robert Zanette. When Best Building Products folded, the 1200 Kam Road property was sold by Sault Holdings to Canadian Pacific. Since Canadian Pacific did not purchase the building, Rino Zanette tore down the building and used parts of it in the construction activities of Rino Zanette (1981) Ltd. in 1985. With the sale of the Kam Road facility, the offices of Sault Holdings, 444348 and Rino Zanette (1981) Ltd. moved to a building on East Arthur Street in Thunder Bay, which was also a property owned by Sault Holdings. Since its creation, Zanette Investments also operated out of the East Arthur Street location. In February 1987, 444348 moved to a building at 428 Balmoral Street which is not owned by Sault Holdings. This move came at a ttme after Local 607 requested section 63 and subsection 1(4) relief against the respondents.

46. Zanette Investments was incorporated in March 1984. Robert Zanette became aware of an opportunity to develop the C.N.R. Hostel in Atikokan. He succeeded in obtaining the project and offered his father the opportunity to participate. Zanette Investments was created to own and manage the project. Robert and Rino Zanette each have a 50-50 interest in the company. A. J. Wing was the general contractor for the project which began in May 1984 and was completed in October 1984. Zanette Investments did not perform any construction work and did not employ any construction employees. Rino Zanette (1981) Ltd. got the contract to do the masonry work and it is unclear whether this contract flowed through A. J. Wing or was deleted from the contract with A. J. Wing. Rino Zanette was also at the project in his capacity as an owner and watched the job closely. The C.N.R. Hostel operates very much like a hotel. In managing the facility, Zanette Investments is required to staff it twenty-four hours a day and it employs people to perform functions similar to those of a desk clerk. Both Robert and Rino Zanette referred to Zanette Investments and the C.N.R. Hostel project as a "one-time deal". That company has not been involved in any other projects. Normally, on a project of this type, 444348 would develop and own the project, but Robert Zanette decided to handle the C.N.R. job differently since it was out of Thunder Bay.

47. Rino Zanette has been involved in the construction business since at least 1963 primarily as a masonry subcontractor. Rino Zanette Limited became defunct along with Terra Krete in 1979 when the bank called a loan. Rino Zanette (1981) Ltd. was incorporated in December 1981 and performed work as a masonry subcontractor. 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 one employer within the meaning of subsection 1(4) of the Labour Relations Act.

48. Rino Zanette (1981) Ltd. last performed work in late 1985. During 1985, it acted more like a general contractor with respect to a few projects, namely, the jobs at Marostica Motors, Arnone Transport and Halfway Motors. Halfway Motors was the last project for Rino Zanette (1981) Ltd. It performed the masonry work and sublet the remaining work such as the electrical and plumbing. Rino Zanette testified that he acted as a general contractor on these three jobs in order to "feel it out" and that after the Halfway Motors job he had had enough. There is no evidence that 444348 was involved in the three jobs where Rino Zanette (1981) Ltd. acted as a general contractor.

49. Rino Zanette (1981) Ltd. did work as a subcontractor occasionally on projects owned by 444348. The combination apartment and commercial development at 1313 Brown Street was such a project. 444348 owns and manages the property. The construction work began in May 1985 and was completed in November 1985 with Rino Zanette (1981) Ltd. performing the masonry work which made up approximately ten to fifteen per cent of the project. On those projects for which Rino Zanette (1981) Ltd. acted as a subcontractor to 444348, the evidence does not suggest that the relationship between the two companies was other than a normal contractor-subcontractor relationship in the construction industry.

50. Rino Zanette (1981) Ltd. had a core group of employees who worked for the company prior to it ceasing operation. This core group consisted of M. Dolph, M. Pucci and 0. Sonego as labourers and G. Cicigoi as a bricklayer.

51. Local 607 filed its grievance against Rino Zanette (1981) Ltd. giving rise to the first referral on October 30, 1985. This grievance was referred to arbitration on November 11,1985. It was shortly after this time that Rino Zanette (1981) Ltd. ceased operating. Local 607 argues that Rino Zanette (1981) Ltd. did not simply discontinue its business but rather sold it within the meaning of section 63 of the Act to 444348 in order to avoid its contractual obligations to Local 607.

52. For the most part, Robert Zanette obtained his background in the construction business from his association with his father. Robert lives with his parents and at the time he gave his evidence he was twenty-eight years old. He completed a couple of years of university in a business program but did not obtain a degree. Prior to its dissolution, Robert worked for Terra Krete as plant manager. He initially worked for the company on a part-time basis before becoming a full-time employee. While working as plant manager, he basically managed the manufacturing process and had very little to do with the on-site erection of precast. Local 607 was the bargaining agent of the manufacturing employees of Terra Krete and in May 1978, obtained bargaining rights for construction labourers employed by Terra Krete. After the bank loan was called, Terra Krete continued to operate for a couple of months in order to finish off some contracts. During this time, Robert worked in the office and eventually his employment was terminated. He then obtained employment as a salesman with a company selling office forms.

53. Robert Zanette incorporated 444348 in April 1980 when he was 20 years old and he testified that he immediately started looking for real estate deals. He testified that he is the one who makes the decisions for 444348, a company which can be characterized as an owner/developer. Robert described in considerable detail what is required to be done from the beginning of a project to its completion. He selects a site, purchases it, obtains the necessarv blueprints, packages the project which is then presented to a wide selection of lenders in order to raise the required financing and subcontracts almost all of the work. In 1985, Robert obtained a licence to sell real estate and this assisted 444348 in finding real estate deals.

54. The first directors of 444348 were Robert and his brother George. From the time of incorporation to the present, Robert Zanette has been a director, an officer and a shareholder in the company. The by-laws of 444348 provide that there must be two directors. When George Zanette resigned as a director in November 1980, Tom Turner became a director and remained one until January 1982. G. Copetti was a director from February 1982 until July 1982. Rino Zanette became a director in March 1983 and resigned his position in January 1985. Susan Zanette, Robert's sister, became a director after her father resigned. While they were directors of 444348, George Zanette and Tom Turner were also shareholders. When Tom Turner relinquished his shares, Keith Jobbit, counsel to 444348, held one share in trust and Robert testified that he believes the share is held in trust for himself. While a director, Rino Zanette was not a shareholder and according to the evidence of Robert and Rino, did not play an active role in the management of the company. Rino Zanette testified that he did not function as a director, did not attend any director's meetings and only let Robert use his name as a director as a favour.

55. When 444348 was initially formed, it had no assets. Its first major transaction involved the purchase of manufacturing equipment at an auction in late 1980 from Thorne Riddell acting as a receiver. These assets were previously owned by Terra Krete at the Kam Road location. Tom Turner arranged for the financing necessary to make the $270,000 purchase of the equipment. The loans were secured by the equipment as well as personal guarantees from Robert Zanette and Tom Turner. 44348 did not operate a manufacturing enterprise. It leased the equipment to Best Building Products, whose principals were Robert Zanette and Tom Turner. This latter entity engaged in the manufacture and sale of concrete products and masonry materials beginning in early 1981 on the Kam Road site owned by Sault Holdings. Tom Turner arranged for the bank loan for Best Building Products in the amount of $50,000 which was secured by inventory and receivables. Robert Zanette was the general manager of the manufacturing business. Tom Turner's involvement in Best Building Products ended in early 1982 and his interest in the company was transferred to Robert Zanette. Best Building Products sold material to Rino Zanette (1981) Limited in the ordinary course of business. There is no evidence which suggests that Rino Zanette had any involvement in the business of Best Building Products. Robert testified that while he was in charge of Best Building Products, the company tried to stay away from erecting precast and the evidence does not support a finding that Best Building Products engaged in construction work. Best Building Products ceased operation in the spring of 1983 when its loan was called. Since that time to the present, 444348 has been involved in selling off the manufacturing equipment.

56. In late 1981, while Best Building Products was operating its manufacturing business, Local 607 made an application under section 63 of the Act against a number of respondents including Terra Krete, Sault Holdings, Best Building Products and 444348. The Board consolidated the section 63 application with a termination application filed by Melvin Dolph. The Board determined that it was more expeditious to assume, without finding, that there had been a sale of a business and to deal firstly with the termination application. After determining that the petition filed in support of the termination application was signed voluntarily, the Board, by decision dated June 28, 1982, directed a representation vote of all employees of the respondents which included the employees of Terra Krete, Sault Holdings, Best Buildings Products and 444348 working in and out of the plant at 1200 Kam Road, Thunder Bay, Ontario, save and except non-working foremen, persons above the rank of non-working foreman, office and sales staff. On the taking of the representation vote, more than fifty per cent of the ballots cast were cast in opposition to Local 607. Accordingly, the Board declared that Local 607 no longer represented the employees of Terra Krete, Sault Holdings, Best Buildings Products and 444348 for whom it had heretofore been the bargaining agent. Robert Zanette testified that the employees of the respondents in the termination application were no longer represented by a trade union subsequent to the Board's decision terminating bargaining rights.

57. Robert Zanette testified that after Best Building Products ceased operating, 444348 became more active in real estate development. In 1984, it bought a little house and fixed it up a bit. In 1985, 444348 purchased an old house, tore it down and acted as owner/developer in the construction of a combination apartment and commercial development. This project is located at 1313 Brown Street and was referred to earlier in this decision. This development was completed in the fall of 1985 and is now managed by 444348. As noted earlier, 444348 was not involved in the other projects Rino Zanette (1981) Limited participated in 1985.

58. In 1986, 444348 took over the development of a project which had been initiated by Rino Zanette (1981) Ltd. As a result of his involvement in the building of the new C.N.R. Hostel in Atikokan, Rino Zanette became aware of the fact that the C.N.R. wanted to demolish its old bunkhouse. Recognizing that the bunkhouse could be moved and used for development purposes, Rino Zanette (1981) Ltd. secured the demolition contract and engaged Commissioner Construction to move the bunkhouse in the fall of 1985. The old bunkhouse was cut into three sections and moved to another site. Rino Zanette (1981) Ltd. was unable to develop the project any further since it lacked the expertise and the reputation as a developer. After discussing the matter with his father, it was determined that Robert would take over the project. 444348, acting as owner/developer/manager, took over the project in 1986 and developed an eight-plex apartment. It bought the site and paid Rino Zanette (1981) Ltd. what its costs were for having the old bunkhouse moved. Rino Zanette (1981) Ltd. did not make a profit on the movement of the old bunkhouse. The construction of this project was completed in 1986. No masonry work was performed on this project. The evidence indicates that Rino Zanette played a role in supervising the project on an informal basis although he was not paid. Rino Zanette was able to do this since he was frequently in Atikokan attending to other business interests.

59. 444348 was involved in two other projects worth noting. It initiated a twenty-seven unit apartment building project on S. James Street in 1986 which was virtually completed by May 1987. By May 1987, a project at 700 Gordon Street was in the planning stages. Robert owned this site in his personal capacity and intends to build a multi-unit condominium project. Rino Zanette (1981) Ltd. was not involved in the S. James Street project and will not be involved in the 800 Gordon Street project.

60. The Board entertained a considerable amount of evidence concerning how each of the 444348 projects were financed. This evidence disclosed that neither Rino Zanette, nor any of the companies he is involved in, played a role in the financing of any of the 444348 projects. Quite frequently, 444348 obtained interim lending from Ann Maloney. Negotiations for the funds were handled by Vic Maloney, a partner in the law firm of Weiler, Maloney, Nelson. This is a firm which sometimes acted as counsel to Rino Zanette (1981) Ltd.

61. Since most of its work was subcontracted, 444348 Ontario Limited used labourers very sporadically until early 1986 when it got into some larger projects requiring more men. By the spring of 1987, the company had four regular employees. It had one handyman, a draftsman, an office secretary and a superintendent. Copetti was hired as superintendent in approximately June 1986 and part of his job consisted of coordinating the trades, estimating and job control. Copetti had been the plant superintendent at Terra Krete but prior to joining 444348, he worked as a manager of a banquet hall for five years. As noted earlier, M. Dolph, M. Pucci and 0. Sonego worked for Rino Zanette (1981) Ltd. as labourers and G. Cicigoi worked for that company as a bricklayer. After Rino Zanette (1981) Ltd. ceased operating, these individuals did perform work for 444348. Robert Zanette could not recall if Pucci worked on the eight-plex apartment job but thought that Dolph worked there sporadically. On this job, 444348 utilized at least s~~x other persons to perform construction labourers' work. Dolph and Pucci worked on the S. James Street project. Robert Zanette testified that 444348 did pick up some employees who had worked for Rino Zanette (1981) Ltd. since they were good employees, although he could not recall how they were contacted. After reviewing the payroll records for 444348, Local 607 alleged that these records disclosed that 444348 paid vacation pay to certain employees for a period of time when these employees worked for Rino Zanette (1981) Ltd. After reviewing the records and taking into account Robert Zanette's evidence on this point, the Board finds that this allegation is not supported by the evidence.

62. As noted earlier, 444348 shared office space with Rino Zanette (1981) Ltd. and the other respondents until February 1987. While sharing office space, the companies also shared a receptionist, used the same mailing address and on an informal basis determined what share of various expenses would be paid by each company. All of the companies shared the same telephone number. In answering telephone calls, the receptionist would simply say "Zanette". This is consistent with the rental inquiry sign that had been placed in the window of the eight-plex apartment at 1313 Brown Street. It simply had "Zanette" in large type along with the shared phone number. 444348 maintained its own bank account. The payroll records of 444348 indicate that Robert Zanette's sister and mother worked in the office for a period of time in 1986.

63. Rino Zanette testified that Rino Zanette (1981) Ltd. was operated as a separate business from the other Zanette companies, including 444348, and that it ceased operating at the end of 1985. Robert Zanette testified that he alone controlled 444348 and that the business of this company was considerably different from the business of Rino Zanette (1981) Ltd. The latter company was essentially a small masonry subcontractor and acted as a general contractor on only three jobs before it ceased operating. Robert testified that as an owner/contractor, 444348 was quite different than a general contractor. A general contractor is tied to a contract with an owner at a certain price and essentially subcontracts the work at the lowest price. As an owner/builder, Robert testified that he is only responsible to himself. He can pay more to a subtrade in order to obtain quality work and is prepared to do this since the reputation of the company has a very important impact on its ability to sell its product. Robert conceded that in deciding who he should subcontract some of his work to, he may occasionally have discussions with his father who might suggest a name for consideration. However, Robert testified that the ultimate decision is his own. Robert indicated that the only involvement he had with Rino Zanette (1981) Ltd. was to occasionally help his father on the accounting aspect of the business by assisting him with the books. The evidence discloses that a crane with the name Terra Krete on it, owned by 444348, was used on Rino Zanette (1981) Ltd. jobs and that a John Deere forklift, whose ownership was not established in evidence, was used on both Rino Zanette (1981) Ltd. and 444348 jobs. A representative of Local 607 took pictures of Rino Zanette's car at the S. James Street project of 444348. Rino Zanette testified that he parked on the site on two or three occasions when visiting friends who lived nearby.

64. We propose to only summarize the extensive submissions made by counsel for Local 607. Counsel argued that Local 607 obtained bargaining rights for a number of the respondents pursuant to section 63 of the Act. For instance, counsel submitted that 444348 and Best Building Products were related employers and successors to Terra Krete. Counsel maintained that the Board's decision in 1982 terminating bargaining rights for 444348 and other respondents did not affect the construction industry bargaining rights of Local 607. In any event, counsel argued that Rino Zanette (1981) sold its business at the end of 1985 to 444348. As well, it was submitted that Rino Zanette (1981) Ltd. and the other respondents constitute one employer for the purposes of the Labour Relations Act.

65. The relevant parts of section 63 and subsection 1(4) are as follows:

66. (1) In this section,

(a) "business" includes a part or parts thereof;

(b) "sells" includes leases, transfers and any other manner of disposition and "sold" and "sale" have corresponding meanings.

(2) Where an employer who is bound by or is a party to a collective agreement with a trade union or council of trade unions sells his business, the person to whom the business has been sold is, until the Board otherwise declares, bound by the collective agreement as if he had been a party thereto and, where an employer sells his business while an application for certification or termination of bargaining rights to which he is a party is before the Board, the person to whom the business has been sold is, until the Board otherwise declares, the employer for the purposes of the application as if he were named as the employer in the application.

1.-(4) Where, in the opinion of the Board, associated or related activities or businesses are carried on, whether or not simultaneously, by or through more than one corporation, individual, firm, syndicate or association or any combination thereof, under common control or direction, the Board may, upon the application of any person, trade union or council of trade unions concerned, treat the corporations, individuals, firms, syndicates or association, or any combination thereof as constituting one employer for the purposes of this Act and grant such relief, by way of declaration or otherwise, as it may deem appropriate.

66. In The Tatham Company Limited, [1980] OLRB Mar. 366, the Board reviewed the purpose of section 63 and the Board's approach to its interpretation:

67. When a business (or part thereof) is transferred, or disposed of, the union retains bargaining rights for the employees in a "like unit" to that which existed prior to the transfer, and the transferee must continue to apply the collective agreement to the unit until the Board otherwise declares. The purpose of the section was succinctly summarized by the Board in Aircraft Metal Specialists Ltd., [1970] OLRB Rep. Sept. 703:

The purpose of section 47a [now section 63] becomes important n assessing the various fact situations that arise. Section 47a operates on a number of levels. The first level, of course, is to prevent the subversion of bargaining rights by transactions which are designed to get rid of the union. We have encounteted situations where there are transactions between various corporate entities which are in effect 'paper transactions', and are a form of corporate charade engaged in for the purpose of eliminating the trade union. In this type of case the Board has liberally interpreted section 47a to preserve the bargaining rights and has attempted to look beyond 'paper transactions' to achieve that purpose. See, e.g. Kem's Masonry, [1964] OLRB Rep. Dec. 382 and Trenton Riverside Dairy, September 1964 (1964) 2 C.L.S. 76-1005.

A further and important purpose of section 47a is to preserve the bargaining rights with respect to work which has accrued to the benefit of the emplloyees as a result of their union becoming the bargaining agent through certification or voluntary recognition. Once the union has been recognized with respect to a particular business the union then obtains a right to bargain with respect to wages, hours and other conditions of employment in that business. The right to participate in the business and its functions in that manner is in the nature of a vested right and section 47a allows the union to pursue that bargaining right when all or part of the business is sold. In making determinations under section 47a therefore, the Board is interested in maintaining the bargaining rights where the sale involves a continuum of the business."

20. Section 55 [now section 63] prevents the destruction of bargaining rights or a dislocation of the collective bargaining status quo, by transforming the institutional rights cf the union and the collectively bargained rights of the employees into a form of "vested interest" which becomes rooted in the business entity, and like a charge on property, "runs with the business." To accomplish this objective, the statute gives a very special meaning to the wotd "sale", envisages that bargaining rights can be continued in a severable "part" of a business, abrogates the notion of privity of contract, and eliminates the significance of the separate legal :identity of the new employer.

21. In keeping with the broad language of the statute and its remedial thrust, the Board has been disposed to give section 55 a liberal, rather than a narrow, interpretation. Little reliance is placed upon the legal form which the business disposition happens to take as between the old employer and its successor. The important factor, as far as collective bargaining law is concerned, is the relationship between the successor, the employees and the undertaking. Of course, the nature of the commercial transaction by which the business may have been transferred cannot be ignored, but it is equally important to consider the intention of the Legislature in drafting section 55, whether the subject transaction creates the mischief to which the statute was directed, and whether the language of the statute can be reasonably said to apply.

22. A section 55 application really invokes two related questions: has there been a "sale" within the extended statutory definition of that term; and does what has been "sold", "transferred" or "disposed of" constitute a "business" or "part of a business". There is seldom any problem with respect to the first question. The real difficulty, as in the present case, is to decide whether what has been "transferred" or "sold" constitutes all, or part, of the predecessor's "business", or, whether there has merely been a transfer of assets or other "incidental" elements of the business. This is not to say that a sale of assets only cannot constitute the sale of business. As Mr. Scace in his book The Income Tax Law of Canada (3rd ed. L.S.U.C. 1976) points out in the chapter entitled "Buying and Selling a Business":

"Although businesses may be consolidated in a number of different ways e.g. by an amalgamation or a winding up, there are only two methods by which a business can be bought or sold, namely, the purchase or sale, of assets or shares."

A commercial lawyer could hardly consider it a novel proposition if one suggested that a "sale of a business" could be accomplished by an asset transaction. We cannot accept the submission that since only assets were transferred, ipso facto, there cannot be a transfer of part of the business. The issue before the Board is whether this particular asset transaction can be considered a "sale" of "part of a business" within the meaning of section 55 of The Labour Relations Act. This requires an appreciation of the labour relations context, as well as some consideration of what a business is, and how one might determine whether it is "the business" which has been transferred.

23. A business is a combination of physical assets and human initiative. It is an economic organization which, in a sense, is more than the sum of its parts. In Raymond Cote, [1968] OLRB Rep. Mar. 1211, the Board put it this way:

"The meaning to be attached to the word 'business' depends to a great extent on the facts and circumstances in each particular case. It cannot be said that any one facet of an enterprise taken by itself necessarily comprises a business. It has been expressed that a business is 'the totality of the undertaking'. The physical assets of buildings, tools and equipment in a business are not necessarily the undertaking per se but are, along with management and operating personnel and their skills, necessary in the operations to fulfil the obligations undertaken with a hope of producing profit to assume its success. The total of these things along with certain intangibles such as goodwill constitutes a business." [Emphasis added]

A business is a commercial vehicle which has been rationally constructed to produce certain goods or services for a defined market - profitably, in the case of private sector enterprises but, in any event, efficiently. It is one harmonious whole consisting of many interrelated parts. From a labour relations perspective, however, the employer-employee relationships take on a special significance. From this view point, the importance of the business is that it generates work for employees. The entrepreneurial activities of the business require it to enter the labour market as an employer and, this in turn, may give rise to the collective bargaining relationships to which The Labour Relations Act is directed. Section 55 preserves the stability of those established collective bargaining relationships if the business, or a coherent part of it, are transferred to a new owner.

24. As might be expected in a labour relations statute, the Board pays particular attention to the character of the business and the characteristics of the employer-employee relationship. In determining whether there has been a "sale" within the meaning of section 55, the Board attaches a special significance to the nature of the work performed in, and by, the business, before and after the alleged transfer. If the nature of the work performed subsequent to the transaction is substantially similar to the work performed prior to the transaction, this would support an inference that there has been a transfer of a business within the meaning of section 55. This approach was considered by the British Columbia Supreme Court in R. v. B. C. Labour Relations Board ex parte Lodum Holdings Ltd., (1969) 1968 CanLII 586 (BC SC), 3 D.L.R. (3d) 41 - an application for certiorari in respect of the then existing successor rights section of the British Columbia Labour Relations Act (it has since been amended.) At page 52 Dryer, J., observed:

"One must keep in mind that the problem before the Labour Relations Board was one of labour relations and consequently, though as pointed out above the whole law must be considered, the weight to be assigned various factors and the inferences to be drawn from certain evidentiary facts are not necessarily the same as would be the case if the problem were one of, say, taxation or control of assets. The importance of the 'business' in its labour relations aspect is the jobs it provides for the employees. One factor to be considered therefore, is whether same or substantially the same jobs are being performed. That depends on a number of factors such as whether the jobs are being performed at the same or substantially the same times and places, in respect of the same or substantially the same goods or services, and for the same or substantially the same customers or patrons, etc. These matters are, in my opinion, more important than the form of transfer." [Emphasis added]

Unless there is a continuation of the work and jobs it would make little sense to preserve the collective bargaining relationship or the collective agreement - particularly in a case like the present one, where the trade union itself is organized on the basis of certain established craft skills.

25. In determining whether there has been a sale of the predecessor's business, the Board has also found it useful to consider the extent to which the various elements of the predecessor's business can be traced into the hands of the alleged successor; that is, whether there has been an apparent continuation of the business - albeit with a change in the nominal owner. This was the approach taken by the Board in Culverhouse Foods Ltd., [1976] OLRB Rep. Nov. 691 (application for judicial review dismissed 18 Jan. 1979) where the Board listed some c'f the factors which might be significant in deciding if there had been a transfer of the predecessor's business:

"In each case the decisive question is whether or not there is a continuation of the business ... the cases offer a countless variety of factors which might assist the Board in its analysis; among other possibilities the presence or absence of the sale or actual transfer of goodwill, a logo or trademark, customer lists, accounts receivable, existing contracts, inventory, covenants not to compete, covenants to maintain a good name until closing or any other obligations to assist the successor in being able to effectively carry on the business may fruitfully be considered by the Board in deciding whether there is a continuation of the business. Additionally, the Board has found it helpful to look at whether or not a number of the same employees have continued to work for the successor and whether or not they are performing the same skills. The existence or non-existence of a hiatus in production as well as the service or lack of service of the customers of the predecessor have also been given weight. No list of significant considerations, however, could ever be complete; the number of variables with potential relevance is endless. It is of utmost importance to emphasize, however, that none of these possible considerations enjoys an independent life of its own; none will necessarily decide the matter. Each carries significance only to the extent that it aids the Board in deciding whether the nature of the business after the transfer is the same as it was before...

This was also the approach adopted by Widjery, J. in Kenmir v. Frizzel, et al, [1968] 1 All ER. 414 - a case arising out of legislation similar to section 55. At page 418 the learned judge commented:

"In deciding whether a transaction amounted to the transfer of a business, regard must be had to its substance rather than its form, and consideration must be given to the whole of the circumstances, weighing the factors which point in one direction against those which point in another. In the end, the vital consideration is whether the effect of the transaction was to put the transferee in possession of a going concern, the activities of which he would carry on without interruption. Many factors may be relevant to this decision though few will be conclusive in themselves. Thus, if the new employer carries on business in the same manner as before, this will point to the existence of a transfer, but the converse is not necessarily true, because a transfer may be complete even though the transferee does not choose to avail himself of all the rights which he acquires thereunder. Similarly, an express assignment of goodwill is strong evidence of a transfer of the business, but the absence of such an assignment is not conclusive if the transferee has effectively deprived himself of the power to compete. The absence of an assignment of premises, stock-in-trade or outstanding contracts will likewise not be conclusive, if the particular circumstances of the transferee nevertheless enable him to carry on substantially the same business as before. [Emphasis added]

If most of the elements that made up the predecessor's business organization can be found in the hands of the successor, and are used for the same business purposes, there is usually a strong inference that there has been a "sale of a business" to which section 55 applies.

26. All of the cases to which we have referred recognize that there are no easily administered mechanical tests which permit the Board to readily distinguish between a "mere sale of assets" and a sale of "part of a business." As the Board commented in Metropolitan Parking, Inc., [1979] OLRB Rep. Dec. 1194 at paragraph 34:

"This distinction is easily stated, but the problem is, and always has been, to draw the line between a transfer of a 'business' or 'a part of a business' and the transfer of 'incidental' assets or items. In case after case the line has been drawn, but no single litmus test has ever emerged. Essentially the decision is a factual one, and it is impossible to abstract from the cases any single factor which is always decisive, or any principle so clear and explicit that it provides an unequivocal guideline for the way in which the issue will be decided."

The issue of whether successorship arises out of a seemingly endless variety of factual settings, with each new case presenting some of the factors considered relevant to the resolution of prior cases while raising other materially altered, entirely omitted, or newly-added facts which arguably should affect the decision on the merits. Much of the confusion which attends successorship results from the facility with which each case can be distinguished on its facts from all former cases; but to dismiss the confusion so lightly would be to disregard the fundamental differences inherent in the various business contexts in which the successorship issue arises. Factors which may be sufficient to support a "sale of business" finding in one sector of the economy may be insufficient in another. In some industries, particular configuration of assets - physical plant machinery and equipment - may be of paramount importance; while in others it may be patents, "know-how", technological expertise or managerial skills which will be significant. Some businesses will rely heavily on the goodwill associated with a particular location, company name, product name or logo; while for other businesses, these factors will be insignificant. The Labour Relations Act applies equally to primary resource industries, manufacturing, the retail and service sector, the construction industry and certain public services provided by municipalities and local authorities. In each of these sectors the nature of the business organization is different, yet in each case section 55 must be applied in a manner which is sensitive to both the business context and the purposewhich the section is intended to accomplish.

67. In assessing the facts in the context of a section 63 application as well as a subsection 1(4) application, the Board takes particular cognizance of a pre-existing relationship. The following passage in Metropolitan Parking Inc., [1979] OLRB Rep. Dec. 1193, explains the basis for this approach:

68. In assessing the facts from which a transfer of a business may be inferred, the Board has always been especially sensitive to any pre-existing corporate, commercial or familial relationship between the predecessor and the alleged successor; or between the predecessor, the alleged successor and a third party. Transactions in these circumstances require a more careful examination of the business realities than do transfers between two previously unrelated business entities. The presence of a pre-existing relationship may suggest an artificial transaction designed to avoid bargaining obligations; or (more commonly) there may be a transaction in the nature of a business re-organization which does not alter the essential attributes of the employer-employee relationship, and which should not, having regard to the purpose of section 55 [now section 63], disturb the collectively bargained framework for that relationship. A business may have created a new legal vehicle to carry on all or part of its activities, or it may have redistributed those activities among its existing legal components without changing its essential character or the identity of its real principals or proprietors. The separate legal identity of the components may be superfluous from an economic view point, and there may be an actual transfer of business activity from one to the other, even though there is little evidence of a transfer of tangible assets, goodwill, etc. In reality, the employer's business may not be exclusively "his" to transfer, for a common principal, shareholder or corporate parent may have the effective power to extinguish an apparently independent business and transfer its economic functions to another. If both businesses are also "in the same business", (i.e. supply the same product in approximately the same way and potentially to the same market or customers) a transfer of a business may have occurred but may be very difficult to detect. In such circumstances it may be important to carefully examine the pre-existing links or lines of common control to which the alleged predecessor and successor are both subject. Such examination is precisely what is undertaken by the Board on an application under section 1(4); but it is also relevant on section 55 applications, and it is for this reason that applicants commonly plead section 1(4) in the alternative. It would be incorrect to make this consideration a decisive "test" for successorship; but where there is a pre-existing corporate connection between the predecessor and the successor the Board has been disposed to infer a "transfer" if there is the slightest evidence of such transaction. (See: Zehrs Markets, [19751 OLRB Rep. Jan. 48.) The pre-existing "nexus" between the respondents inevitably colours the Board's view of facts. As a practical matter, it is much more difficult to sustain the contention that one has not acquired a predecessor's business but merely founded a new, independent, but similar, business serving the same market. (See, for example: Thorco, supra, where a firm closed down one of its manufacturing operations and transferred its equipment to a recently incorporated related company; or Gordons Markets, infra, paragraph 40. In both cases the transaction also looked like a scheme to avoid bargaining rights.)

69. In [Brant Erecting and Hoisting, (1980] OLRB Rep. July 94.5](), the Board described the purpose of subsection 1(4) and went on to explain why in some circumstances an order under subsection 1(4) is more appropriate than an order under section 63:

12....

Section 1(4) was enacted in 1971 and deals with situations where the economic activity giving rise to employment or collective bargaining relationships regulated by the Act, is carried out by, or through more than one legal entity. Where such legal entities carry on related business activities under common control or direction, the Board is empowered to pierce the corporate veil. Section 1(4) ensures that the institutional rights of a trade union, and the contractual rights of its members, will attach to a definable commercial activity, rather than the legal vehicle(s) through which that activity is carried on. Legal form is not permitted to dictate or fragment a collective bargaining structure; nor will alterations in legal form undermine established bargaining rights. In this respect the purpose of section 1(4) is similar to that of section 55 which preserves the established bargaining rights and collective agreement when a "business" is transferred from one employer to another. Section 55 has been part of the scheme of the Act since the mid 1960's. Neither remedial provision requires a finding of anti-union animus; their primary application is to bona fide business transactions which incidentally undermine or frustrate established statutory rights. Since the two sections are complementary, it is not unusual, as in the present case, for an applicant to rely on both.

13. Section 1(4) does not require that related business activities under common control or direction be carried on simultaneously or contemporaneously. This issue was clarified in 1975 by the addition to section 1(4) of the phrase "whether or not simultaneously". The amendment reflects a legislative recognition that the essential unity and identity of an economic activity (which gives rise to employment) may be preserved even though the legal vehicles through which the activity is carried on will not operate simultaneously; and, business may be effective]iy transferred from one corporate entity to another, without any of the indicia of a "transfer of a business" which might trigger the application of section 55. This is especially the case in the construction industry where many of the employers will not have the permanence or investment in fixed plant and equipment characteristic of a manufacturing concern. A small construction company can move from job site to job site or place to place, assembling tools, equipment and a labour force as required after it has made a successful bid. There may be no established economic organization, labour force or configuration of assets. A single principal may have several companies which are used, more or less interchangeably, so that bidding is done and work performed through whichever company is convenient. In such circumstances there may be an effective transfer of business between related businesses without any apparent disposition of assets, inventory, trade names, goodwill, employees, etc. Similarly, where capital requirements are minimal and business relationships transitory, it is relatively easy to wind up one business, and create another one which carries on essentially the same business as before. Indeed there will often be good commercial reasons for doing so unrelated to any express desire to undermine the union's bargaining rights. The earlier company may have run into financial difficulties, or lost is reputation, or there may be legal, accounting or tax advantages in establishing a new vehicle through which the business, or related business activities can be conducted. Again, it is quite possible to do this without a clear and concrete disposition between the two firms so as to call section 55 into play. To ensure that the industrial relations status quo is preserved, the Legislature has provided that where two employers carry on related economic activities, under common control and direction, whether or not simultaneously, they can be treated as one for the purposes of the Act. However, it should be noted that section 1(4) is discretionary. The Board need not make a 1(4) declaration even when the conditions precedent are present; and has not done so, for example, where a trade union is seeking to extend rather than preserve its bargaining rights.

14. The Board is not satisfied that the evidence supports the applicant's argument that Local 607 obtained bargaining rights for some of the respondents as a result of a sale of the construction business of Terra Krete. Although Terra Krete occasionally engaged in the erection of precast and was certified by Local 607 for construction labourers, the evidence does not support the conclusion that, in addition to the manufacturing business which was transferred, there was a transfer to Best Building Products of the construction business of Terra Krete. In any event, it appears that any bargaining rights held by Local 607 as a result of any possible sale involving 444348, Best Building Products and Sault Holdings were terminated by the Board in 1982. It was argued that the Board's decision terminating the bargaining rights of Local 607 applied only to Terra Krete's manufacturing business and that this is supported by the fact that the bargaining unit was described as an all employee unit. The description in the decision does refer to "all employees" but is not consistently framed in industrial terms. The exclusions begin with "non-working foremen" which is language commonly used in a construction bargaining unit. The bargaining unit description used by the Board in its termination decision would have been taken from the parties' collective agreement which was not placed before us. The parties may have defined their bargaining unit without regard to the rules the Board would normally utilize in a certification proceeding. The Board's decision in 1982 terminates the bargaining rights Local 607 had with all of the named respondents. Robert Zanette testified that after the Board's decision, Local 607 had no involvement with the operation of any of the respondents named in the termination application. Having regard to all of the circumstances, the Board finds that Local 607 did not continue to hold bargaining rights subsequent to the Board's termination decision in 1982 for the employees of any of the respondents named in that proceeding. The applicant is left then with demonstrating that it has or should have bargaining rights with the respondents flowing from its bargaining rights with Rino Zanette (1981) Ltd.

15. The applicant argued that the Board should declare Sault Holdings and Zanette Investments, along with certain other named respondents, to be a single employer for the purposes of the Act. However, as indicated above, Zanette Investments was a "one-shot deal" and never employed any construction employees, let alone construction labourers. For at least the last ten years, Sault Holdings has operated as a land holding company which has not employed anyone to perform construction industry work. Even when it acted as an owner/developer, there is no evidence to suggest that Sault Holdings employed any construction employees. In these circumstances, even if all of the other elements necessary for a subsection 1(4) declaration were found to be present, the Board would not exercise its discretion to give subsection 1(4) relief regarding Sault Holdings and Zanette Investments. As noted in the cases referred to above, subsection 1(4) and section 63 are designed to protect a trade union's bargaining rights when the business to which those bargaining rights attach is sold or is carried out by or through more than one legal entity. However, bargaining rights do not rise in an employment vacuum and the operation of these provisions has generally beeen limited to protecting bargaining rights thai attach to enterprises giving rise to employment. In exercising his discretion under subsection 1(4), one of the factors which the Board examines is whether the business carried on by a respondent employs anyone. If a respondent does not have any employees and does not have a history of employing anyone, it will generally be very difficult for an applicant to demonstrate that a subsectl[on 1(4) declaration is warranted. In this case, the Board has not been convinced that it should exercise its discretion under subsection 1(4) of the Act insofar as Sault Holdings and Zanette Investments are concerned, given the absence of construction labourers in their employ. Should this situation change, it would be open to Local 607 to seek relief under subsection 1(4).

16. We are left then with the issues of whether the business of Rino Zanette (1981) Ltd. was sold to 444348 within the meaning of section 63 of the Act or whether these two entities are a single employer within the meaning of subsection 1(4) of the Act.

17. As the Board noted in Brant Erecting and Hoisting, supra, the nature of the business of a small construction company is such that it is often very difficult to detect the transfer of the business from one entity to another since, in realty, there is very little, if anything, in a concrete sense to transfer. It is for this reason that the Board has noted that it is often more appropriate to deal with situations of this type within the context of subsection 1(4) of the Act. In reviewing all of the evidence before us, the Board is unable to conclude that there has been a sale of a business from Rino Zanette (1981) Ltd. to 444348. The evidence adduced before us does not establish that there has been a continuation of all or part of the business of Rino Zanette (1981) Ltd. by 444348. Many factors, such as the transfer of goodwill, existing contracts and accounts receivable, which are often of some assistance in determining whether there is a continuation of the business, are not present here. Although there is some evidence that the two companies shared two pieces of equipment, there is no evidence that any equipment was transferred from Rino Zanette (1981) Ltd. to 444348 when Rino Zanette (1981) Ltd. ceased operating. The only two factors which might lead one to conclude that there has been a sale of a business in this case is the movement of most of the employees of Rino Zanette (1981) Ltd. from that company to 444348 in approximately mid-November 1985, and the fact that those employees performed similar work utilizing the same skills when working for 444348. However, these factors by themselves are not determinative as illustrated by the following comments in Metropolitan Parking Inc., supra, at paragraph 36:

18. Despite the labour relations focus of the statute "the business" is not synonymous with its employees or their work. In exceptional circumstances the accumulated skills, ability, know how or business contacts of the employee may be so crucial, or irreplaceable, that their loss would mean the demise of all or part of the business as a going concern; but these cases are rare. For the most part, the continued employment of the predecessor's employees is only one factor to be considered. The reason for this is succintly stated by the Canada Labour Relations Board in NA. B. E. T. v. Radio CJYC Ltd. et al., (1978) 1 Can. LRBR 565:

"The purpose of the successorship provisions is to preserve bargaining rights in spite of changes in the ownership or control of an enterprise. Bargaining rights are typically granted to a trade union as bargaining agent for a unit of employees of an employer employed in certain classifications or at a certain location, or for all employees with specified exceptions. Bargaining rights do not attach to certain specific employees as individuals. Therefore, in defining the concept of business for the purpose of successorship, it would be incorrect to focus upon whether certain identifiable persons formerly in the employ of A are now in the employ of B. Furthermore, to focus on that question would invite employers to avoid the successorship provisions by refusing to maintain continuity of the individuals employed. A key to the protecting of bargaining rights must be whether there is continuity in the nature of the work done (i.e. in classifications or job content for which the union was certified) not in the actual persons who perform it...

But continuity of the work done is not sufficient alone to satisfy section 1(4). There must be some nexus between two employers other than the fact that one employed persons to do certain work that the other now does or will do, before one can be declared the successor of the other. Otherwise a loss of work to a competitor employer would result in a succesorship. There must be some continuity in the employing enterprise for which a union holds bargaining rights as well as continuity in the nature of the work. The two go hand in hand. [Emphasis added]

A continuity of the work and/or the employees is significant, but it is not always sufficient, to sustain a finding of successorship. This Board adopted a similar view in British American Bank Note Co. Ltd., [1979] OLRB Rep. Feb. 72 - a case which, like the present one, involved the consequences of a loss of a contract:

"There are limits, however, to the extent to which section 55 can be used to preserve collective bargaining rights. It is clear that the provisions of this section do not attach bargaining rights to the work being performed by a business but only to the business itself. While this distinction may not be easy to draw in some cases, it is essential that it be maintained since section 55 cannot be interpreted as guaranteeing to a bargaining agent an absolute right of property in the work performed by its members. Section 55 serves only to preserve bargaining rights that have become attached to a business entity so that when that business entity is transferred, either in whole or in part, those bargaining rights survive and bind the successor employer.

The focus of section 55 is the business entity - the employer's total economic organization - not simply the work which the employees perform.

Although the work in part performed by 444348 with some of the employees formerly employed by Rino Zanette (1981) Ltd. is similar to the work performed by Rino Zanette (1981) Ltd., we are unable to conclude, in all the circumstances, that the business or part of the business of Rino Zanette (1981) Ltd. was sold to 444348 within the meaning of section 63 of the Act. In assessing the facts, the Board has been mindful of the pre-existing familial relationship. As the Board notes in Metropolitan Parking, supra, the existence of a previous relationship is not "a decisive 'test' for successorship" but causes the Board to very carefully examine the facts relied upon to support a sale of a business allegation.

73. For the foregoing reasons, the applicant is not entitled to relief under section 63 of the Act. We turn next to the applicability of subsection 1(4). Before the Board can exercise its discretion under that provision to declare that the entities in question constitute one employer for the purposes of the Act, three conditions must be satisfied. There must be more than one corporation, firm or individual association or syndicate involved. The entities must be under common control or direction. And finally, the entities must be engaged in associated or related business activities. Subsection 1(4) does not require that related business activities under common control or direction be carried on simultaneously or contemporaneously.

74. This case clearly involves more than one corporation. In determining whether or not Rino Zanette (1981) Ltd. and 444348 are under common control and direction, the focus must be on Rino Zanette. The central feature of Rino Zanette (1981) Ltd. is Rino Zanette. There is no evidence to suggest that Robert Zanette played any role in Rino Zanette (1981) Ltd. prior to it ceasing operation. In argument, Local 607 submitted that the evidence warranted a finding that the two companies were a single employer from that point in time in 1985 when both were involved in the project at 1313 Brown Street. In effect, Local 607 maintains that from that time on, Rino Zanette's involvement with 444348 should lead the Board to conclude that the two companies are under common control and direction.

75. The Board has indicated that the following criteria are of some assistance in determining whether associated or related activities or businesses are carried on under common control or direction: (1) common ownership or financial control, (2) common management, (3) interrelationship of operations, (4) representation to the public as a single integrated enterprise, and (5) centralized control of labour relations. See, for example, Donald A. Foley, [1980] OLRB Rep. Apr. 436 and Walters Lithographic Company Limited, [1971] OLRB Rep. July 406. With these criteria in mind, the Board has examined the role of Rino Zanette in 444348.

76. Rino Zanette does not have an ownership interest in nor does he exercise any financial control of 444348. For a period of time ending in January 1985, Rino was a director of 444348 but did not attend any meetings or exercise any authority as a director. Rino Zanette's term as a direcbr came to an end prior to the start of the construction activity on the 11313 Brown Street project.

77. The evidence concerning common management favours the two respondents, although not conclusively. Robert Zanette made the decisions affecting the operation of his company and, since April 1986, Coppetti also played a significant managerial role. Rino Zanette (1981) Ltd. was the masonry subcontractor for the project at 1313 Brown Street but the evidence does not suggest that Rino Zanette performed a role on that project which was not typical of a subcontractor. In other words, the evidence does not indicate that Rino Zanette was in charge of the job. The same cannot however be said regarding his role in the construction in 1986 of the eight-plex apartment in Atikokan. Although not paid for his work, Rino Zanette played a role in supervising the project. Although the evidence does not disclose the precise nature and extent of his supervisory duties, his participation in this project provides some support for Local 607's position. However, the evidence does not suggest Rino Zanette played a similar role in any of the other 444348 projects. The mere presence of his car on the S. James Street project does not establish that he played a significant role with respect to that project.

78. There is a degree of interrelationship of operations of the two companies. For a considerable number of years, they have operated out of the same premises. have a common reception area, phone number, bookkeeper and post office box, and informally shared office expenses. It is noteworthy that these arrangements have existed for many years prior to the time Local 607 alleges that the two companies became one employer for the purposes of the Act. Their continued presence in 1985 and subsequently is of less significance than they might otherwise be. We note as well that it is not surprising that companies with a family connection would share space and office expenses. Although a relevant factor, the sharing of space and office expenses must be viewed in the broader context of the business operations of the two companies. The fact that businesses share office space and expenses alone will not make them one employer for the purposes of the Act.

79. There is some evidence that the companies have been held out to the public as a single integrated enterprise. The rental sign at 1313 Brown Street with the common phone number as well as answering the common phone with the word "Zanette" suggest some commonality. These factors though are very much related to the sharing of office space. Regarding centralized control of labour relations, there is no evidence to suggest that anyone other than Robert Zanette, and perhaps Coppetti, determines who will be hired to work for 444348 Ontario Limited, what work they will perform, where they will work and what the terms and conditions of their employment will be.

80. Local 607 emphasized the age of Robert Zanette and the considerable construction

experience of Rino Zanette in submitting that Rino Zanette must be playing a significant role in 444348. However, the Board found Robert Zanette to be a credible witness and a person who is extremely knowledgeable in the business of developing properties, as evidenced by his detailed testimony concerning the various aspects of developing a property beginning with the site selection and proceeding with the financing and the ultimate construction of a building. Having regard to all of the evidence, we find that Robert Zanette operated 444348 without any significant control or direction from his father.

81. The essence of a subsection 1(4) situation is the presence of a common principal or principals benefiting from a related activity or business. When reviewing the relevant criteria and the circumstances in this case, the Board cannot conclude that Rino Zanette is in effect one of the principals of 444348 or that he benefits from that company's operations. Although we can understand how some of the circumstances would have caused Local 607 to suspect that the companies were related, this matter cannot be determined on the basis of suspicion. The Board is not satisfied on the evidence before it that Rino Zanette (1981) Ltd. and 444348 are under common control or direction. Given this finding, it is unnecessary for us to determine whether these two entities are engaged in associated or related activities or businesses and, if so, whether it would be appropriate to exercise our discretion to grant relief under subsection 1(4).

82. Accordingly, Local 607's section 63 and subsection 1(4) application is dismissed.

83. As noted earlier, the Board ruled in May 1987 that it would not begin to hear the evidence relating to the second referral at that time. In paragraph 37 of this decision, the Board has indicated why it would not, as suggested by counsel for Local 607, apply the evidence it heard on the section 63 and subsection 1(4) application to the second referral. Local 607 could only succeed with the second referral if it succeeded with its section 63 and subsection 1(4) application. Since Local 607 has not succeeded with that application, it is appropriate to dismiss the second referral. Accordingly, the referral of a grievance to arbitration in Board File No. 0343-87-G is hereby dismissed.

DECISION OF BOARD MEMBER HENRY KOBRYN; September 21, 1988

1I have read this seventy-three page decision most carefully. I can agree with all that has been written on the history of these proceedings. The only disagreement I have with the decision is the reasoning as to why the subsection 1(4) application by the union should be dismissed.

2This history is an accurate account of the extensive manipulations by the respondents, who are a closely- knit family group overseen by its patriarch, Mr. Rino Zanette, to frustrate and delay these proceedings. The respondents' counsel were used for the same purpose, knowingly or otherwise, and then discharged by the respondents.

3These tactics become clear when one reads the lengthy letters written by counsel for Mr. Robert Zanette arguing that Zanette Investments Inc. and 444348 Ontario Limited should not be named as parties in these proceedings because they did not get notice and were not aware of these proceedings. Yet Mr. Robert Zanette lived at home during this period and he told us that he assisted his father with the bookkeeping for the companies.

4This is also an accurate history of the various companies set up by Mr. Rino Zanette starting with Rino Zanette Limited, Sault Holdings Limited, Terra Krete Limited, 464011 Ontario Limited c.o.b. as Best Building Products, Rino Zanette (1981) Ltd., Zanette Investments Inc. and 444348 Ontario Limited.

5Zanette Investments Inc. has Rino and Robert as part-owners. 444348 Ontario Limited has Robert as the owner and, for a time had Rino as a director and a supervisor of a construction project.

6Rino Zanette Limited was replaced by Rino Zanette (1981) Ltd. in 1981. Then the union got a subsection 1(4) decision on January 27, 1984 (Board File No. 1659-83-M) which was

resisted, and then the union filed a grievance which was referred to arbitration on November 11, 1985. It was shortly after this time that Rino Zanette (1981) Ltd. ceased operating.

7This is a classic case for a successful subsection 1(4) declaration for the following reasons:

(1) This is a closely-knit family group overseen by its patriarch Mr. Rino Zanette.

(2) Mr. Robert Zanette, owner of 444348 Ontario Limited, resides in the family home with his father (paragraph 8 of decision).

(3) Rino Zanette and Robert Zanette were the owners of Zanette Investments Inc. (paragraph 43 of decision).

(4) All the corporate entities in these proceedings had the same address (paragraph 45 of decision).

(5) 444348 Ontario Limited only moved out from that address after the union made a section 63 and subsection 1(4) application.

(6) Rino Zanette has a long history of involvement in the construction industry as a masonry subcontractor and later as a general contractor. He is the one with the extensive building construction experience (paragraphs 47 & 48 of decision).

(7) Robert Zanette's work experience has very little to do with building construction experience. He was plant manager at Terra Krete, then got into real estate re the development of properties and their financing (paragraphs 52 & 53 of decision).

(8) 444348 Ontario Limited was incorporated in April 1980 to purchase the manufacturing equipment previously owned by Terra Krete from a receiver (paragraph 55 of decision).

(9) Rino Zanette was a named director of 444348 Ontario Limited for a time (paragraph 54 of decision).

(10) 444348 Ontario Limited took over the former eml)loyees of Rino Zanette (1981) Ltd. (paragraph 61 of decision).

(11) 444348 Ontario Limited shared the crane and other equipment with Rino Zanette (1981) Ltd. (paragraph 63 of decision).

(12) At the CNR job at Atikokan, Rino supervised the job for Robert Zanette (paragraph 77 of decision).

(13) There was an interrelationship between the operations of the two companies for a considerable number of years (paragraph 78 of decision).

(14) There was also evidence that the companies have been held out to the public as a single integrated enterprise (paragraph 79 of decision).

8For a person who has at least thirty-five years of experience in construction industry labour relations throughout this whole province and a substantial amount of experience as a participant in proceedings in subsection 1(4) cases, all the reasons listed above spells out to me that this is a case with all the required elements for a successful subsection 1(4) case. In addition, the credibility of the patriarch of this closely-knit family group is basically non-existent; he would only answer the necessary questions asked of him after he was faced with contempt of the Board.

9The history of these proceedings begs the question: if the respondents had nothing to hide, why did they resort to the shenanigans outlined in this history, in an open attempt to bamboozle the union and this Board?

10For all the above reasons, I feel the subsection 1(4) should succeed and the Board declare Rino Zanette (1981) Ltd., Sault Holdings Limited, Zanette Investments Limited and 444348 Ontario Limited to be one employer within the meaning of subsection 1(4) of the Labour Relations Act.