[1989] OLRB Rep. May 437
1108-88-U Sheet Metal Workers' International Association, Local 47, Complainant, v. Conrad Heating Co. and Joe Conrad, Respondents
BEFORE: R. O. MacDowell, Alternate Chair, and Board Members W. H. Wightman and K. Daytes.
DECISION OF THE BOARD; May 9, 1989
- This is a complaint under section 89 of the Labour Relations Act which was heard together with a related application under section 124. The Board (differently constituted) determined that the respondent employer contravened the Labour Relations Act and directed as follows:
As a result of our findings above and pursuant to section 89, we direct that the respondents pay to the complainant/applicant on its own behalf and in trust for Mr. Hamelin the sum of $1,983.52 together with interest to date in the amount of $65.46 on or before December 31, 1988.
The Board's decision was released on December 1, 1988.
- By letter dated April 5, 1989 counsel for the complainant union wrote to the Board as follows:
On December 1, 1988, a panel of the Ontario Labour Relations Board consisting of Judith McCormack, Vice-Chairman, and Board members G. 0. Shamanski and B. L. Armstrong rendered a decision on Board Files No. 1108-88-U and No. 1242-88-G.
With regard to the Section 89 complaint set out in Board File No. 1108-88-U, the Board ordered that the Respondents Conrad Heating Co. and Joe Conrad pay to the Complainant, Sheet Metal Workers' International Association, Local 47 on its own behalf and in trust for Mr. Hamelin the sum of $1,983.52 together with interest to date in the amount of $65.46 on or before December 31, 1988.
To date, the Complainant has not received any monies pursuant to the Board Order as summarized above. Accordingly, pursuant to Section 89(6) of the Labour Relations Act, this letter will serve to notify the Board of the Respondents' failure.
Please find enclosed a completed Form 3. I trust that, pursuant to Section 89(6) of the Act, the Board will take steps to file the enclosed Form, in the Office of the Registrar of the Supreme Court.
I thank you in advance for your co-operation in attending to this matter.
Upon receipt of the complainant's letter and request that the Board Order be filed in Court for the purpose of enforcement, the Board's Registrar wrote to the respondents as follows:
The Board is in receipt of the attached letter dated April 5, 1989, from counsel for the complainant, which alleges that the respondents have failed to comply with the terms of the decision of the Board dated December 1, 1988, directing the respondents to implement the settlement therein set out.
If the respondents have any representations to make with respect to the said submission of counsel for the trade union, you must file them with the Board not later than April 24, 1989.
If you fail to file any submission on or before that date, or if the Board is satisfied on the submission made to it that there has been non-compliance with the said Board order, the Board will file the said order in the Supreme Court pursuant to Section 89(6) of the Labour Relations Act.
- As of the date hereof there has been no response from the respondents to either letter or the submissions contained in them. The respondents have not contested the fact that there has been a failure to pay the monies specified in the Board's decision.
II
- Section 89(6) of the Labour Relations Act provides:
Where the trade union, council of trade unions, employer, employers' organization, person or employee, has failed to comply with any of the terms of the determination, any trade union, council of trade unions, employer, employers' organization, person or employee, affected by the determination may, after the expiration of fourteen days from the date of the release of the determination or the date provided in the determination for compliance, whichever is later, notify the Board in writing of such failure, and thereupon the Board shall file in the office of the Registrar of the Supreme Court a copy of the determination, exclusive of the reasons therefor, if any, in the prescribed form, whereupon the determination shall be entered in the same way as a judgment or order of that court and is enforceable as such.
- Although [what is now] section 89(6) could be read as requiring the Board to file its determination with the Registrar of the Supreme Court upon merely being "notified" of noncompliance, for a number of years the Board considered it appropriate to require a party requesting that the Order be filed to prove the fact of non-compliance if such was disputed. This practice was consistent with the then current view that practical or labour relations difficulties arising from the Board determination should be addressed, initially, by the Board before seeking the intervention and involvement of the Courts. This procedure received the approval of the Court in Chairtex Manufacturing (1971) 1971 CanLII 669 (ON CA), 3 OR. 154 where the Court held that the Board did not exceed its jurisdiction by adopting this approach. More recently, however, the Board has introduced a procedure whereby it advises the respondent of the allegation of non-compliance, and gives the respondent an opportunity to take issue with that submission (see for example Apple Bee Shirts Limited, [1983] OLRB Rep. Dec. 1957). Where the respondent either agrees that there has been a failure to comply with the Board's determination or simply does not respond to the allegation of noncompliance, the Board will typically file its determination with the Court pursuant to section 89(6) of the Act, because, in the absence of any response, it will normally be satisfied that there has been a failure to comply. Neither Chairtex nor the terms of the statute require a hearing, and none is really necessary where the fact of non-compliance is not put in issue.
III
- Having regard to the foregoing, the Board is satisfied that the respondents have failed to comply with the Order of the Board and directs that that Order be filed in the Supreme Court of Ontario so that the complainant can seek its enforcement.