Ontario Labour Relations Board
[1990] OLRB Rep. December 1259
1368-90-R International Brotherhood of Electrical Workers, Local 353, Applicant v. Delta Electric Eastern Limited, Delta Electrical & Mechanical Inc., Delta Electrical & Mechanical Limited and Delta Electric Ltd., Respondents
BEFORE: Owen V. Gray, Vice-Chair, and Board Members W. Gibson and C. A. Ballentine.
APPEARANCES: Murray Gold, Bob Gill and Richard Lyman for the applicant; no one appearing for the respondents.
DECISION OF THE BOARD; November 28, 1990
1This is an application under section 63 and subsection 1(4) of the Labour Relations Act ("the Act"). The applicant alleges that there has been a sale of business among the respondents and that they engage in associated or related businesses or activities operated under common control and direction in circumstances in which they should be declared to constitute a single employer for the purposes of the Act. As filed, the application shows four names in the list of respondents in the title of the proceeding. As will become apparent, there appear only to be two corporate entities of importance here: Delta Electrical & Mechanical Limited (which will sometimes be referred to herein as "DEM Limited") and Delta Electrical & Mechanical Inc. (sometimes hereafter referred to as "DEM Inc.").
2Various attempts were made to give the respondents notice of these proceedings. At a point when it was not clear whether the initial such attempts had been successful, we issued an order in which the respondents were specifically directed to comply with subsections 1(5) and 63(13) of the Labour Relations Act, which provide as follows:
1.-(5) Where, in an application made pursuant to subsection (4), it is alleged that more than one corporation, individual, firm, syndicate or association or any combination thereof are or were under common control or direction, the respondents to the application shall adduce at the hearing all facts within their knowledge that are material to the allegation.
63.-(13) Where, on an application under this section, a trade union alleges that the sale of a business has occurred, the respondents to the application shall adduce at the hearing all facts within their knowledge that are material to the allegation.
In addition to directing compliance with the requirement that some person(s) attend the next scheduled hearing to give the requisite oral evidence, we also directed that each respondent produce at that hearing all documents in its possession, custody or power relevant to the matters in issue. We refer later in this decision to the means by which notice of these proceedings, that decision and the scheduled hearing were given to the affected respondents. At this point, we simply note that when the matter came on for hearing on November 15, 1990, notices sent to apparently appropriate addresses had not been returned and we felt comfortable concluding, in the absence of evidence to the contrary, that the affected respondents had notice. No one appeared at that hearing on behalf of any of those respondents, nor did any of them comply in any way with our earlier direction.
3It is in the nature of proceeding of this type that most of the relevant facts are uniquely within the knowledge of the respondents. Before subsections 1(5) and 63(13) were added to the Act, decisions of the Board regularly observed that the applicant had to introduce some evidence to support the underlying factual assertion that a transaction or relationship of the sort contemplated by section 63 or subsection 1(4) had taken place or existed. The decisions often observed that applicants could summons officers of the respondent corporations to give evidence with respect to the relevant facts if that was necessary in order to put some such evidence before the Board. In those decisions the Board also observed, however, that very little evidence might be required to satisfy the evidentiary burden on a trade union applicant when the relevant facts were largely, if not exclusively, within the knowledge of the respondent employers: Woodway Structural Components, [1971] OLRB Rep. Aug. 545; and see Beaver Engineering Ltd., [1973] OLRB Rep. Jan. 57. Subsections 1(5) and 63(13) of the Act now impose a burden of adducing evidence on respondent employers but do not expressly alter the legal burden of proof. Where an applicant trade union chooses, as this one did, to proceed with the application in the absence of the respondent employers, rather than enforce compliance with the statutory burden and our confirming order, it appears to us that the applicant still must adduce some evidence to support the findings necessary for the application to succeed. The obvious intent of subsections 1(5) and 63(13), however was that the absence of information peculiarly within the knowledge of the respondent should not stand in the way of success. We have taken that intent into account assessing the weight be given to the evidence the applicant was able to provide in these circumstances.
4The applicant's evidence was that, on October 22, 1987, a man named Werner Kasper signed a voluntary recognition agreement on behalf of an electrical contractor he described as "Delta Electric Manitoba Ltd." By that agreement, the contractor agreed to be bound by the terms of the then existing provincial collective agreement governing the employment of electricians and electricians' apprentices in the industrial, commercial and institutional sector of the construction industry. Counsel for the applicant advised us that the relevant Ontario authorities have no record of a corporation of that name having been incorporated in Ontario or registered to carry on business in Ontario. Indeed, he said that searches he had caused to be performed in Manitoba in connection with these proceedings failed to disclose the existence of a corporation by that name in that province either.
5Certified copies of records of the Companies Branch of the Ministry of Consumer and Commercial Relations of the Province of Ontario disclose that, as of October 22, 1987, the words "Delta Electric" appeared in the names of two corporations carrying on business in Ontario. One of those was Delta Electric Ltd., a corporation incorporated under the laws of the Province of Manitoba. An initial notice filed under the Corporations Information Act on behalf of that corporation on October 28, 1987 described it as having commenced business in Ontario on October 26, 1987 and identified Werner E. Kasper as its Director and agent for service in Ontario, with an office address down the street from the project in connection with which Mr. Kasper had signed the voluntary recognition agreement. The other corporation was "Delta Electric Eastern Limited", an Ontario corporation incorporated on October 6, 1987. According to that corporation's filings, Werner Kasper became its sole director and officer on November 17, 1987 after it had been incorporated by another individual, presumably his solicitor.
6It was the applicant's evidence that the "Delta Electric" with which it dealt following the voluntary recognition abided by the relevant collective agreement and, pursuant to that collective agreement, made the appropriate contributions to the applicant's welfare trust fund on behalf of the various union members whom it employed from time to time. These contributions were accompanied by the customary contribution reports, which would be sent to the employer each month by the applicant's benefits administrator. The applicant provided us with copies of the reports returned by the employer commencing in February 1989. It would appear from those reports that at sometime between October 1987 and February 1989 the benefits administrator had begun addressing the "Delta Electric" Company as "Delta Electric East Ltd." and that the "Delta Electric" known to the union was content to be so described.
7Certified copies of documents from the records of the Companies Branch show that, by Articles of Amendment effective April 5, 1989, Delta Electric Eastern Limited changed its name to Delta Electrical & Mechanical Limited. The Articles of Amendment are signed by Werner Kasper as President. The union's benefits administrator continued to send employer contribution reports to "Delta Electric East Ltd." for completion. We note that the reports returned to the union for the period April to April 30, 1990, bear a "received" stamp with the name "Delta Electrical & Mechanical Ltd." on it.
8The applicant provided us with the viva voce evidence of an electrician who was the general foreman for the company known to the union as "Delta Electric" at the terminal 3 Hotel project at the Toronto International Airport between sometime in January, 1990 and April 1, 1990. We are satisfied by his evidence that Werner Kasper was actively involved in the management of the "Delta Electric" company known to the union during that time period. The witness left that job on April 1, 1990 over disagreements about the company's management of the work. He testified that at that time the work for which "Delta Electric" was responsible was perhaps 20 per cent complete.
9Certified copies of documents in the records of the Companies Branch show that Werner Kasper was the sole director and officer of 874961 Ontario Limited as of March 22, 1990. This numbered company had been incorporated on December 28, 1989 by a lawyer at a law firm whose office address remained the head office address of the corporation. That is the last information return filed by any of the corporate respondents. By Articles of Amendment signed by Werner Kasper on March 22, 1990 and filed March 28, 1990, that numbered company changed its name to "Delta Electrical & Mechanical Inc.".
10In response to an inquiry they had made, on May 25, 1990 the applicant's solicitors received a facsimile transmission from a law firm in Vancouver confirming that the latter represented an insurance company which had issued labour and material payment bonds with respect to "Delta Electrical Projects", one of which was "Terminal 3, Lester B. Pearson International Airport, Hotel electrical work." Copies of the bonds were included in the transmission. From those documents it appears that a labour and material bond was issued in December 1989 with respect to obligations of "Delta Electrical & Mechanical Ltd." under a contract with the Foundation Company of Canada Limited and others for the performance of "Terminal 3, Lester B. Pearson International Airport, Hotel electrical work." Attached to that bond is a document entitled "Modification Number 1" by which "it is understood and agreed that the name of the principal is amended to read: Delta Electrical & Mechanical Inc." This document is dated April 3, 1990 and is executed by the Foundation Company of Canada Limited and by the insurance company which issued the bond, as well as by Werner Kasper on behalf of both Delta Electrical & Mechanical Ltd. and Delta Electrical & Mechanical Inc. Counsel for the applicant has asked us to treat these documents as evidence that there was a transaction of some sort between DEM Limited and DEM Inc. and others, by which DEM Inc. took over the benefit and burden of DEM Limited's then uncompleted contract for the performance of Hotel electrical work at Terminal 3. Having regard to the observations we made in paragraph 3 above, we accept those documents as slight but satisfactory evidence of that proposition.
11Grievances filed by the applicant against the company it then still knew as "Delta Electric Eastern" were referred to the Board under section 124 on two occasions earlier this year. On the first of those two occasions, Mr. Kasper signed a memorandum of agreement by which "Delta Electric Eastern" acknowledged that it was bound by and in default under the electricians provincial collective agreement in the ICI sector. The Board's file with respect to that proceeding shows that the respondent to it was represented by a solicitor from the law firm whose office address was and remains the registered head office address of DEM Inc. As we have already observed, Delta Electric Eastern was no longer the corporate name of any of Mr. Kasper's corporations at that point in time. We are advised that the records of the Companies Branch show no registration of "Delta Electric Eastern" as a style under which any entity carries on business.
12Notices of this application and of the hearing scheduled for November 15, 1990 and of our earlier order and direction to the respondents were all sent by mail to several addresses. Mail sent to some of those addresses was returned undelivered. The information return referred to in paragraph 9 above shows an address on The Kingsway in Toronto as Mr. Kasper's residence address. Mail sent to the Kingsway address was not returned undelivered, nor was mail sent to the law firm whose address is shown on that return as the head office address of what shortly thereafter became known as Delta Electrical & Mechanical Inc.
13On the basis of the foregoing, we find that DEM Limited was at all material times bound by the provisions of the provincial collective agreement between The Electrical Bargaining Agency of the Electrical Association of Ontario and the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario. We further find that associated or related activities or businesses were carried on, whether or not simultaneously, by or through DEM Inc. and DEM Limited under the common control or direction of Werner Kasper. We further find that there was a sale of all or part of the business of DEM Limited to DEM Inc. on or before April 3, 1990. In all the circumstances, we declare that the corporations now known as Delta Electrical & Mechanical Limited and Delta Electrical & Mechanical Inc. constitute, and have since December 28, 1989 constituted, a single employer for the purposes of the Labour Relations Act which was and is bound by the provisions of the aforementioned provincial collective agreement.