International Union of Operating Engineers, Local 793 v. Spider-Maple Lift Limited
[1990] OLRB Rep. January 81
2207-89-R International Union of Operating Engineers, Local 793, Applicant v. Spider-Maple Lift Limited and/or Spider Waste Management Services and/or Innisfil Landfill Corporation, Respondent
BEFORE: G. Surdykowski, Vice-Chair, and Board Members W. N. Fraser and R. R. Montague.
APPEARANCES: Jack J. Slaughter for the applicant; M. Contini for Spider-Maple Lift Limited; no one appeared for Spider Waste Management Services; M. Contini for Innisfil Landfill Corporation (for purposes of an adjournment request only).
DECISION OF THE BOARD; December 22, 1989
1This is an application for certification. It came on for hearing on December 22, 1989. Mr. Contini appeared on behalf of the respondent Spider-Maple Lift Limited. He also appeared on behalf of the respondent Innisfil Landfill Corporation ("Innisfil") but advised the Board that his retainer in that respect was limited to requesting an adjournment on its behalf. No one appeared at the hearing on behalf of Spider Waste Management Services.
2Mr. Contini advised the Board that Innisfil was seeking an adjournment on the basis set out in a letter dated December 21, 1989, as follows:
We wish to confirm that we are the general solicitors for Innisfil Landfill Corporation and have been requested by our client to seek your consent to an adjournment of the above-noted hearing. We were only able to contact Mr. Stephen Mernick, President of Innisfil Landfill Corporation, today to discuss this matter. His wife is pregnant and has suffered some complications recently and both personal and business matters have prevented him from retaining a qualified labour lawyer to deal with this matter. It may be possible that Mr. Contini, who is acting on behalf of the receiver appointed for Spider-Maple Lift Limited, may also be retained to act on behalf of Innisfil Landfill Corporation, but we do not yet know if the position of both corporations will be the same because Mr. Mernick has not yet had an opportunity to review the Form 10 filed on behalf of Spider-Maple Lift Limited by Mr. Contini, and to discuss the possible complications for the companies with his operational people.
We appreciate that you are not in your office today, and that this request is coming at a rather late date. However, we hope that you appreciate the reasons for this and we would ask you to contact the undersigned tomorrow morning to let us know what position you will be taking at the hearing.
We thank you for considering our request and look forward to hearing from you.
Mr. Contini had no further instructions and was therefore unable to assist the Board further.
3Counsel for the applicant advised the Board that although he had not yet seen it, he understood that the letter Mr. Contini filed with the Board had been delivered to his office late in the afternoon on December 21, 1989, the day before the hearing. There had been no other or prior indication from Innisfil that it would be seeking an adjournment. The applicant opposed the adjournment request.
4This application was filed on December 4, 1989. Notice of the application and of the hearing scheduled for December 22, 1989 with respect to it, and all other material documents were sent to the respondents, including Innisfil, on December 8, 1989.
5We are mindful of the maxim that labour relations laid are labour relations defeated and denied (see Journal Publishing Co. of Ottawa Ltd. et al v. Ottawa Newspaper Guild, Local 205, OLRB et al, March 311977, Ontario Court of Appeal, unreported). In recognition of that, and especially in certification proceedings, the Board will generally refuse to grant an adjournment except on consent of the parties or where it is satisfied that there are exceptional extenuating circumstances. The Board's discretion with respect to determining whether or not an adjournment should be granted is a broad one and a party which has had adequate notice of a hearing does not have a right to have it adjourned for the convenience of itself or its representative (Re Flamboro Downs Holdings Ltd. and Teamsters Local 1879 (1979), 1979 CanLII 1669 (ON HCJ), 24 OR. (2d) 400 (Div. Court)).
6In this case, Innisfil's request for an adjournment was not, in our view, made in a timely manner. Nor was any cogent basis offered for the request. The request is based on some general and unspecified "personal and business" reasons. Even if Mr. Mernick's wife's complications are the personal reasons referred to, there is no indication of how or why either they or any other personal or unspecified business matters interfered with Innisfil's ability to either retain counsel or otherwise prepare with the application as scheduled. In the circumstances, the Board was not satisfied that there was any cogent reason for the application to be adjourned and Innisfil's request in that respect was denied.
7On the basis of the material before the Board and the representations of the applicant and Spider-Maple Lift Limited, the application was withdrawn with leave of the Board as against Spider-Maple Lift Limited and Spider Waste Management Services. This left Innisfil Landfill Corporation as the sole remaining respondent. (At this point Mr. Contini excused himself from the proceeding.)
8On the basis of the material filed and the representations of the applicant, the Board found that all employees of the respondent in the Township of Innisfil, save and except non-working foreman, and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.
9The Board was satisfied, on the basis of the evidence and material before it, that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on December 18, 1989, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the Act.
10Accordingly, the Board ruled, orally at the hearing, that a certificate shall issue to the applicant.