[1990] OLRB Rep. December 1344
1547-90-U Christopher Topple, Complainant v. The International Union, United Plant Guard Workers of America Local 1962, Respondent v. General Motors of Canada, Intervener
BEFORE: G. T. Surdykowski, Vice-Chair.
APPEARANCES: Christopher Topple on his own behalf; Donald K. Eady and Watson E. Cook for the respondent; J. Hanson and Ms. E. Campin for the invervener.
DECISION OF THE BOARD; December 3, 1990
At the conclusion of the hearing on November 27, 1990 herein, an issue arose with respect to the enforceability of two summonses which the complainant asserts he served, one on a Eugene McConville and one on a Frederick R. Curd, Jr.
In his affidavit of service with respect to the McConville summons, the complainant swears or affirms (it is not specified which) that on October 8, 1990 he served Mr. McConville with a summons at 25510 Kelly Road, Roseville, Michigan, together with conduct money in the form of a money order in the amount of $325.00 in U.S. funds. The respondent challenges this summons. With respect to the Curd summons, the complainant swears or affirms (again it is not specified which) that he served Mr. Curd with a summons on October 12, 1990 at 3741 Lakeshore Road in Newcastle, together with conduct money in the form of a money order in the amount of $90.00. The intervener challenges this summons.
The complainant asserts that he served both summonses in accordance with the instruction sheet he received from the Board with the summons he requested. When the Board's office sends summons to a party which has requested them, a sheet in the following form is sent with them:
Summons to Witness
Statutory Powers Procedure Act, R.5.O. 1980, c.484, s.12(2)(c):
12.-(2) A summons issued under subsection (1) shall be in Form 1 and,
(c) shall be selved personally on the persons summoned who shall be paid the like fees arid allowances for his attendance as a witness before the tribunal as are paid for the attendance of a witness summoned to attend before the Supreme Court.
Rules of Civil Procedure, Tariff A, Item 19:
Attendance money actually paid to a witness who is entitled to attendance money, to be calculated as follows:
Attendance allowance for each day of necessary attendance …………….$50.00
Travel allowance, where the hearing or examination is held,
(a) in a city or town in which the witness resides, $3.00 for each day of necessary attendance;
(b) within 300 kilometres of where the witness resides, $0.24 a kilometre each way between his or her residence and the place of hearing or examination;
(c) more than 300 kilometres from where the witness resides, the minimum return air fare plus $0.24 a kilometre each way from his or her residence to the airport and from the airport to the place of hearing or examination.
- Overnight accommodation and meal allowance, where the witness resides elsewhere than the place of hearing or examination and required to remain overnight, for each overnight stay …………………….$75.00
PLEASE READ THE ABOVE CAREFULLY. THE BOARD CANNOT PROVIDE YOU WITH ADVICE AS TO HOW TO COMPLETE THE SUMMONS NOR HOW IT MUST BE SERVED.
For a summons to be enforceable, it must be served personally upon the individual being summonsed together with the appropriate conduct money. Unless otherwise provided for through the appropriate reciprocal legislation, the summons must be served within the geographic jurisdiction of the tribunal whose process it is a part of in order to be enforceable. As the Board pointed out in Hamilton Automatic Vending Company Limited, [1989] OLRB Rep. March 248:
Under the Labour Relations Act, the Board has the power to summon and enforce the attendance of witnesses and compel them to give evidence under oath and to produce such documents and things as the Board may require. The Board also has the power to determine its own practice and procedure. The Board's power to summons witnesses and compel their testimony is repeated in section 12 of the Statutory Powers Procedure Act which, in subsection 2, subparagraph (c), adds the requirement that a summons issued by the Board shall be served personally on the person summoned who shall be paid the like fees and allowances for his attendance as a witness before the tribunal as are paid for the attendance of a witness summoned to attend before the Supreme Court.
Where a summons is issued by this Board at the request of one of the parties to proceedings before it, that party is expected to effect service and pay conduct money in accordance with this requirement. It is on that basis that parties are provided with summonses at their request. Although neither the Labour Relations Act nor the Statutory Powers Procedure Act ("the 5PPA") expressly confers on the Board the power to enforce payment of conduct money, it seems to us that this must be a concomitant of the express power to summons and compel attendance of witnesses, particularly in circumstances where natural justice requires that that power be exercised on behalf of and at the request of parties to proceedings. It is part of the Board's process that conduct money be paid by the parties who request and effect service of a summons. It is arguably an abuse of the Board's process to make use of a summons without discharging the corresponding obligation with respect to conduct money.
- Subsection 23(1) of the SPPA provides:
A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
If the power to enforce payment of conduct money by a person who uses a Board's summons is not implicit in the Board's powers to determine its own practice and procedure and to summons and compel the attendance of witnesses, then it seems to us that such a power must flow from subsection 23(1) of the Statutory Powers Procedure Act. We are in no doubt of the potential for abuse of the Board's processes by the use of its summonses. A finding that such abuse has occurred is not a prerequisite to the exercise of our power under subsection 23(1) of the SPPA...
Although it is less than obvious on the face of Tariff A of the Supreme Court of Ontario's Rules of Simple Procedure, it is well settled that the conduct money which accompanies a summons must be both sufficient in its amount and, as the affidavit service suggests, in "cash". For the purposes of conduct money, "cash" means "ready money" in the sense of the actual currency used as a meaning of exchange in the jurisdiction. It does not include cheques, whether certified or not, or money orders (see Acadian Bricklayers Ltd.,[1984] OLRB March 399).
Accordingly, neither the McConville nor the Curd summons as aforesaid is enforceable. The McConville summons was not served on Mr. McConville while he was in the Board's jurisdiction and the money order which accompanied it does not constitute appropriate conduct money. The Curd summons was not accompanied by conduct money in a proper form either (in my view Mr. Curd was entitled to a $50.00 per day attendance allowance, travel allowance of $0.24 per kilometre each way between his residence and the Board; there is insufficient information before the Board for me to comment on whether he would be entitled to an accommodation and meal allowance).