[1989] OLRB Rep. May 479
2018-88-U United Steelworkers of America, Applicant v. Plaza Fibreglas Manufacturing Limited and Plaza Electro-Plating Ltd. and Citron Automotive Industries and Sabina Citron, Respondents
BEFORE: Patricia Hughes, Vice-Chair.
APPEARANCES: L. A. Richmond, M. Crnkovich and J. Perquin for the applicant; Mary Eberts for the respondents.
DECISION OF THE BOARD; April 26, 1989
1On November 24, 1988, the United Steelworkers of America ("the union") filed an application under section 93 of the Labour Relations Act ("the Act") alleging that Plaza Fibreglas Manufacturing Limited ("Plaza Fibreglas"), Plaza Electro-Plating Ltd., Citron Automotive Industries (both together with Plaza Fibreglas "the companies") and Sabina Citron had unlawfully locked-out the employees of Plaza Fibreglas. The first few days of hearing into that application (before me sitting alone) were devoted to preliminary objections and the production of documents.
2Mrs. Citron, the principal of the companies, as well as an individually named respondent, undertook to produce certain documents which had been the subject of a summons duces tecum by the union. Subsequently, however, she stated she would not produce application forms for "Citcor Manufacturing Ltd." ("Citcor") (which Mrs. Citron testified was the entity which had been referred to in the application as "Citron Automotive Industries"), without covering over the addresses, telephone numbers and social insurance numbers of the persons making the applications. I was persuaded that the union was entitled to determine who had made application at Citcor and required the covered information on the documents to establish the identity of the persons concerned because of the number of persons bearing the same names; furthermore, I ruled it was entitled to satisfy itself that there were no other marks on the application forms which might be relevant to the hiring at Citcor. Mrs. Citron nevertheless refused to produce the complete documents because, she said, she had been told by employees that the union had threatened them. I ruled that that reason was irrelevant to her obligation to produce the documents. Even if the threats which Mrs. Citron claimed underlay her refusal to produce had in fact occurred, they would not, in my view, constitute a lawful excuse to refuse to produce the documents as ordered. Therefore, I did not hear evidence about the alleged threats.
3The union requested that I state a case under section 13 of the Statutory Powers Procedure Act ("the SPPA"). After two further refusals by Mrs. Citron to produce the documents, I read aloud section 13 of the SPPA, heard and considered submissions with respect to my exercising my discretion to state a case under that provision (among other arguments, counsel for Mrs. Citron contended that the employees' privacy rights outweighed the union's need to have the information disclosed), and stated a case which could be brought before the Divisional Court on application by the union. (See the Board's decision dated December 16, 1988).
4Subsequently, a three person panel of the Board (including the writer) directed that the merits of the section 93 application be heard together with a complaint which had been filed by the union under section 89 of the Act against the companies and Mrs. Citron (Board File No. 2019-88-U).
5The stated case came on before the Divisional Court on March 31, 1989, giving rise to the following endorsement by the Court:
Application is adjourned sine die. We are of the view that Mrs. Citron refused to produce the documents herein without lawful excuse. We note that the Board has broad powers to compel evidence and it would only be in very exceptional circumstances that a witness could refuse to answer relevant questions or produce relevant documents. This is not one of these exceptional cases. It has not been shown to us that this precise issue has come to this Court previously under section 13 (of the SPPA). We think it would be unjust to proceed further with this inquiry at this time without affording the respondent Mrs. Citron another opportunity to produce the requested information.
Accordingly we direct the Board to give her another opportunity in view of this ruling to produce that information and we adjourn this hearing sine die.
6Since the section 92 application and the section 89 complaint were in the process of being heard by the Board, the Board scheduled a separate hearing for April 25, 1989 before me sitting alone to give Mrs. Citron a further opportunity to produce the documents. At the outset of the hearing, counsel for Mrs. Citron (who had not appeared in the previous proceedings) requested an adjournment. After hearing the submissions of both counsel, I recessed and upon reconvening, gave the following oral decision:
Counsel for the respondent has requested an adjournment of this matter. This hearing date was fixed to comply with the direction of the Divisional Court to the Board in its endorsement of March 31, 1989 to give Mrs. Sabina Citron a further opportunity to produce in their entirety documents which she had refused to so produce despite direction of the Board to do so. Counsel advised that leave to appeal the Divisional Court's decision of March 31 is to be sought and accordingly, Mrs. Citron should not be put in the position of refusing to comply with a direction she is appealing. Counsel for the applicant has opposed the request.
The state of the matter is this: the Board has directed Mrs. Citron to produce the documents in their entirety; she has refused to so so; on the request of the applicant, the Board has stated a case to the Divisional Court; that Court has found that Mrs. Citron had no lawful excuse to refuse to produce but rather than imposing penalty at that time, directed the Board to give her a further opportunity to produce and adjourned the matter - that is, the still outstanding issue of penalty - sine die. This hearing is in compliance with that direction.
It is the Board's normal practice to proceed with matters before it regardless of whether there is either an actual or anticipated application for judicial review: see, for example, Arlington Crane Service Limited, [1985] OLRB Rep. Nov. 1547; C.P. Fisheries Ltd., [1986] OLRB Rep. Nov. 1503; Chrysler Canada Ltd., [1975] OLRB Rep. Sept. 699. It is a practice approved by the Court of Appeal: Re Cedarvale Tree Services Ltd. and Labourers' International Union of North America, Local 183, Source decision, [1971] 3 OR. 832. In each case, of course, the Board must look at the circumstances before it and determine whether it is "advisable in the interests of justice" to adjourn any hearing (see Rule 82 of the Board's Rules of Practice). One of the consequences of refusing adjournments is that further steps are taken or parties become subject to penalties.
In this case, there is outstanding the matter before the Divisional Court; it remains incomplete and will remain incomplete - and cannot be completed -until the Board complies with the Court's direction. It is more appropriate in my view for the Board to take the step required of it by the Court's decision than to halt that process by granting an adjournment. If, as suggested by her counsel, Mrs. Citron will refuse to produce the documents, both the applicant and the respondents will be free to exercise their legal rights. An adjournment at this stage would, in my view, serve a greater injustice against the applicant than a refusal to adjourn would serve against Mrs. Citron, if, indeed, it can be considered an injustice, even in these circumstances, to give her a further -at minimum, fourth - opportunity to produce documents which she has been directed to produce. Mrs. Citron is not impeded in the exercise of her rights by being given the opportunity; a failure to observe the Court's direction - or to postpone its observance - would leave the applicant without the recourse envisioned by the Divisional Court's endorsement.
Therefore, the request for an adjournment is denied.
7Mrs. Citron then took the witness stand and after confirming that what Mrs. Citron had been directed to produce were the application forms for Citcor without the addresses, telephone numbers and social insurance numbers covered over, I gave her a further opportunity, as directed by the Divisional Court, to produce the application forms in their entirety. Mrs. Citron once again refused to produce the documents in that form.
8The purpose of the specially scheduled day of hearing having been completed, the Board adjourned the proceedings until the next regularly scheduled day of hearing into the section 93 application and the section 89 complaint.
[On May 1, 1989 the Divisional Court sentenced Mrs. Citron to a 30 day suspended jail sentence. The Court's decision is reported at [1989] OLRB Rep. May 528: Editor]