United Steelworkers of America v. American Barrick Resources Corporation

[1990] OLRB Rep. March 267

1879-89-R United Steelworkers of America, Applicant v. American Barrick Resources Corporation carrying on business as Holt-McDermott Mine, Respondent v. Group of Employees

BEFORE: R. A. Furness, Vice-Chair, and Board Members W. H. Wightman and C. McDonald.

APPEARANCES: Brian Shell, Wes Dowsett and Marie Kelly for the applicant; Mark Contini, John Haflidson, Louis Dionne and Ron Colquhoun for the respondent; no one appearing for the objectors.

DECISION OF THE BOARD; March 1, 1990

1. The hearing of this application for certification was heard on November 24, 1989. The hearing was held in Toronto with the applicant and respondent in attendance.

2. This application for certification was filed on November 1, 1989. The terminal date was fixed as November 16, 1989. This panel of the Board heard the application after a Labour Relations Officer had met with the applicant and the respondent. As a result of meeting with the Labour Relations Officer, the applicant and the respondent narrowed their differences, and, after deciding on an issue with respect to membership evidence, the Board was about to release a decision issuing an interim certificate to the applicant together with the appointment of a Labour Relations Officer to inquire into and report to the Board on a number of persons in dispute. Before a decision issued, this panel was informed by the Registrar on November 29, 1989, of the facts set forth in paragraph three.

3. On November 22, 1989, the Board received sixty-eight individual statements in opposi­tion to this application for certification together with an accompanying letter. This material had been mailed by registered mail on November 16, 1989. However, this material which did not refer to any file number of the Board was misfiled within the Board. The named respondent in the appli­cation is "American Barrick Resources Corporation" and the correct name of the respondent is "American Barrick Resources Corporation carrying on business as Holt-McDermott Mine". The accompany letter, which referred to "Holt-McDermott Mine", reads as follows:

(Name)

(Address)

(Telephone Number)

Nov. 15/89

The Ontario Labour Relations Board

400 University Avenue

Toronto, Ontario

M7A 1V4

To whom it may concern:

I am writing in regard to a petition, myself and some other concerned employee's (sic) of Holt­McDermott Mine have started.

This petition is to oppose the application made by the United Steel Workers Union.

In less than a week we have gathered this many signatures, some of which had signed a Union card, some others are impartial. Had we had more time probably the majority would be in our favour. Therefore we are requesting that the meeting of Nov. 24th be held in a centre closest to our area as possible.

Hopefully, with this many signatures, we feel that another vote would be fair.

Hope to hear from you soon.

Sincerely,

(Name)

(Signature)

4. The Registrar was not aware of the existence of this material until November 29, 1989, and consequently was not able to communicate to the representative of the objectors prior to the scheduled hearing on November 24, 1989. On November 29, 1989, the Registrar acknowledged the receipt of the material from the objectors and also advised the applicant and the respondent of the same.

5. On January 3, 1990, the Registrar received the following letter from counsel for the applicant:

Re: United Steelworkers of America and American Barrick Resources Corporation; Application for Certification; Board File: 1879-89-R; Our File: OLRB-868

I acknowledge receipt of your letter dated November 29, 1989 advising of receipt of a typewritten letter dated November 15, 1989 and Statements of Desire enclosed therewith.

I confirm your telephone advice that the Board wishes to receive the comments of the United Steelworkers of America with respect to the above-captioned letter from you with enclosures.

This application for certification was heard before the Board on November 24, 1989 and before Board Officer Reilly immediately following the formal hearing before the Board which dealt with an evidentiary matter in this file.

The applicant forwarded the "Notice of Posting" card to the Board advising the Board that the "Notice to Employees (Form 6)" was posted by the employer on November 9, 1989, seven days before the terminal date set by the Board and 13 days before the scheduled hearing date of November 24, 1989.

As the Board knows, no one appeared before the Board on November 24, 1989 on behalf of any objecting employee or group of objecting employees and no one joined the meeting with Board Officer Reilly on November 24, 1989 on behalf of any objecting employee or group of employ­ees.

The "Notice to Employees (Form 6)" referred to above provides in paragraph 5 thereof as fol­lows:

IF YOU DO NOT ATTEND AT THE HEARING THE BOARD MAY PROCEED IN YOUR ABSENCE AND YOU WILL NOT BE ENTITLED TO ANY FURTHER NOTICE OF THE PROCEEDING.

With respect to the cover letter dated November 15, 1989 from an objecting employee which appears to request a change of venue, I advise that I did not receive any such request or have any knowledge of any such request until the receipt of the material from the Board, more than one week after the hearing date.

It is respectfully submitted that where objecting employees have received notice of the applica­tion for certification, notice of the terminal date, notice of the hearing date, and have been cau­tioned in the terms set forth above from paragraph 5 of Form 6, such employees have no further rights where they do not attend before the Board on the scheduled hearing date. A request to change the venue, which was not granted by the Board, does not mean that the objecting employees escape the consequences of their failure to attend at the Board on the scheduled hearing date. (Emphasis in letter).

In addition, it is respectfully submitted that the applicant committed itself to positions with respect to Schedules A, B, C & D in the meeting with Board Officer Reilly on the basis that there was not a numerically relevant Statement of Desire objecting to the applicant's application for certification in circumstances which included the fact that no one attended at the Board to speak to any such statement of desire.

Moreover, the applicant and respondent consented to the Board issuing a decision without a further hearing before a panel of the Board. The applicant and the respondent executed an "Application for Certification Waiver of Hearing" specifically consenting to the Board issuing a decision based upon the submissions made and the agreements reached without a further hear­ing before a panel of the Board. In this regard, the applicant submits that it is prejudiced if the Board does not consider the application for certification based upon the "Meeting with a Board Officer Report" and the "Application for Certification Waiver of Hearing", both of which are signed by the parties who attended before the Board on November 24, 1989, and the submis­sions before the panel on the hearing date.

It is respectfully submitted that the objecting employees have no standing before the Board fol­lowing their failure to attend on the scheduled hearing date. Any departure from this well-estab­lished principle would interfere with the Tribunal's ability to provide finality to an application for certification or any other proceeding.

The applicant relies upon Rules 73(5) and 80(2) of the Board's Rules. These provisions make it clear that where a person is informed of the hearing by posting and fails to appear at the hear­ing, the Board is entitled to deal with the matter without further notice to the person and with­out considering any statement filed by him. Where such statement has been filed on or before the terminal date, the failure to appear on the hearing date makes the statement of desire irrele­vant. (Emphasis in letter).

The Board has held in numerous cases (see, for example, Intercity News Co. Ltd. [1981] OLRB Rep. Feb. 171) that it will give no effect to a statement of desire where the petitioners have failed to appear and give first hand evidence regarding the petition. Furthermore, the Board has refused to grant an adjournment of a scheduled hearing where a party fails to attend. (See, for example, Russel Mc Vicar Ltd. [1980] OLRB Rep. July 1049).

I also observe that I am not in receipt of any correspondence from any representative of any objecting employee or group of objecting employees.

I respectfully submit that there is not any basis for any further delay in the Board's determination of the application for certification based upon the material filed, the agreements reached with Board officer Reilly and the evidence and submissions made to the Board on November 24, 1989.

6. On, January 4, 1990, the Registrar received the following letter from counsel for the

respondent:

Re: United Steelworkers of America and America Barrick Resources Corporation Board File No. 1879-89-R

We have been invited to make submissions as to the appropriate manner of dealing with 68 identical statements of desire enclosed with a letter dated November 15, 1989 which have been received by the Board.

At the outset, we would note that all of the facts relevant to these submissions are not fully clear to us. As a result, it is necessary to make certain assumptions.

First of all, we assume that the letter enclosing the statements of desire was sent by registered mail and was so sent on or before the terminal date of November 16, 1989, in accordance with the Board's requirements. Secondly, as would appear from the stamp on the copy of the letter we have received, we assume that the November 15 letter was received by the Board on Novem­ber 22, 1989 at 2:00 p.m. We further assume that no attempt to contact the objecting employee to respond to the request made in the letter to have the hearing held in the centre closest to the mine area was made by the Board between the time of receipt of the letter and the time of the hearing.

If the assumptions noted above are correct, it is our submission that full consideration should now be given to the statements of desire that have now been filed. We note the provisions of section 75(1)(b) of the Board's Rules of Procedure:

"75(1) Where a document is required to be filed by these Rules, filing shall be deemed to be made,

(b) where it is mailed by registered mail addressed to the Board at its office at 400 University Avenue, Toronto, Ontario M7A 1V4, at the time it is mailed."

In accordance with this provision, the statements of desire in this case are deemed to have been filed with the Board on or before the terminal date. As a result, they are timely and accord with the requirements of section 73(3) of the Board's Rules of Procedure. Therefore, they merit full consideration by the Board.

We acknowledge that the Form 6, Notice to Employees of Application for Certification and of Hearing, advises that objecting employees or their representatives must attend the Board's hearing if their objection is to be considered and in this case no objecting employee or represen­tative appeared at the November 24th hearing. However, we note that a specific request was made in the letter of November 15, 1989 sent to the Board by the objecting employee, asking that the hearing be moved to the closest possible centre to the area of the mine. The letter ends with the hope that the Board will provide a response. Under these circumstances, we submit it was reasonable for the objecting employees to anticipate further advice from the Board in respect of when and where the hearing would take place. As indicated, we assume no such fur­ther advice was received. We submit that it was reasonable for the objecting employees to assume that the hearing would not simply proceed in line with the original notification provided in the Form 6 without further contact and advice from the Board as to hearing arrangements.

As indicated above, it would appear that the letter of November 15, 1989 was received by the Board on November 22, 1989 at 2:00 p.m. There was ample opportunity for the Board to con­tact the objecting employees after this time to confirm hearing arrangements before November 24th. Given the content of the letter from the objecting employee, we submit that the appropri­ate course of action for the Board to follow was to make such contact with the objecting employees. However, as indicated, we assume that no attempt to contact them was undertaken by the Board.

We note that the provisions of section 73(5) of the Board's Rules of Procedure are not manda­tory. The Board has the discretion to consider the statements of desire that have been filed in this case notwithstanding the failure of the objecting employees to appear at the hearing. In all of the circumstances as outlined above, the failure of the objecting employees to appear on the 24th should be regarded as excusable and the Board's discretion should be exercised in favour of a full consideration of their objection in accordance with the Board's practice.

By way of conclusion, we would note that there are always uncertainties concerning the true wishes of employees which are inherent in applications for certification, given the nature of membership evidence that is submitted. In this case, there is an additional element of uncer­tainty presented by the fact that all of the membership evidence that has been submitted is in the form of photocopies. In these circumstances, we submit that it is especially important that all possible steps be taken to ensure the best possible assessment of the true wishes of the employ­ees affected by the application. This in our submission, necessarily requires that the statements of desire that have been filed be given full consideration by the Board.

Thank you for the opportunity of making these submissions.

7. On January 15, 1990, the Registrar received the following letter from counsel for the applicant:

Re: United Steelworkers of America and American Barrick Resources Corpo­ration; Application for Certification; Board File: 1879-89-R; Our File: OLRB-868

I acknowledge receipt of a copy of a letter from the respondent to the Board in the above-captioned matter, dated January 4, 1990. I set forth below our representations in response to the respondent's letter.

The respondent states that since the statements of desire were received by the Board in a timely fashion (an assumption made by the respondent and the applicant in their submissions to the Board) "they merit full consideration by the Board". The applicant reiterates and relies upon the decision set forth in its letter to the Board dated January 3, 1990 (Intercity News Co. Ltd.) [1981] OLRB Rep. Feb. 171 and the cases following it which hold that the Board will give no effect to a statement of desire where firsthand evidence is not given in support of the petition on the hearing date. Therefore, the respondent's proposition that because the petitions were received in a timely manner they should be considered by the Board has not been accepted by the Board in the past.

The respondent states that it was reasonable for the objecting employees to assume that the hearing would not proceed on November 24. The applicant takes the position that such conclu­sion is not reasonable in view of the express caution contained on the Form 6 which was posted at the employer's premises prior to the terminal date in this matter. The respondent suggests that it was reasonable for the objecting employees to anticipate that they would hear from the Board with respect to the scheduling of the hearing and that it was "appropriate" for the Board to contact the objecting employees to advise them of whether or not the hearing would proceed on November 24, 1989. If the Board accepts the respondent's suggestions that the Board must contact objecting employees who have requested a change of venue and confirm with them whether or not the hearing will be proceeding on the date schedule, a cumbersome administra­tive and scheduling procedure will be established. If the Board is required in every case where a request is received prior to the first scheduled hearing date to confirm with the party who has made the request whether or not their request is granted, many difficulties may arise, particu­larly with respect to objecting employees. What if, for example the objecting employee who has requested a change of venue or an adjournment has not set forth his telephone number on the correspondence, or what if the objecting employee who has requested a change of venue or an adjournment is not reached by the Board regardless of attempts to contact him?

The applicant has taken the position throughout this matter that the fact that the membership evidence submitted in support of this application was photocopied does not reduce the value of such evidence in before the Board. The applicant disagrees with the respondent's assertion that there is an "additional element of uncertainty" which arises from the fact that photocopied membership cards were relied upon by the applicant before the Board. This factor is irrelevant to the Board's determination of whether or not the statement of desire should be considered.

Thank you for your attention to this matter.

8. On January 22, 1990, the Registrar received the following letter from counsel for the respondent:

Re: United Steelworkers of America and American Barrick Resources Corporation

Board File No. 1879-89-R

We acknowledge receipt of a copy of a letter from Counsel for the Applicant dated January 3, 1990 with respect to the matter above noted. Further to your invitation, following is our response thereto.

The Applicant's primary submission is that the failure of the objecting employees to attend at the November 24th hearing renders the statement of desire irrelevant and is fatal to any further rights the objecting employees might have. Reliance is placed on sections 73(5) and 80(2) of the Board's Rules of Procedure in support of this proposition.

The Respondent notes that the provisions of section 73(5) and 80(2) of the Board's Rules are not mandatory. The objecting employees' failure to appear does not automatically render the statement of desire irrelevant. The Board has the discretion to consider the statement, notwith­standing the failure to appear. In all of the circumstances obtaining in this case, it is submitted that the Board's discretion should be exercised in favour of consideration of the statement of desire. We note that a specific request was made in the letter of November 15th sent to the Board by an objecting employee for a change in venue for the hearing. It was reasonable for the objecting employees, who do not appear to have been represented by counsel to assume that a response to their request would be provided before the hearing proceeded.

Counsel for the Applicant also makes the point that "[a] request to change the venue, which was not granted by the Board, does not mean that the objecting employees escape the consequences of their failure to attend at the Board on the scheduled hearing date." In response to this point, we would note that this is not a case where the objecting employees' request for a venue change was refused, following which the objecting employees chose not to appear. In such circum­stances, there may well be merit in disposing of an application without further consideration of the position of the objecting employees. However, such are not the circumstances that obtain here. As indicated in our letter of January 4, 1990, we assume that the objecting employees in this case were not contacted at all with respect to their request. In fact, we assume that no attempt was made by the Board to contact them to respond to their request. In these circum­stances, there is merit in the exercise of discretion in favour of a consideration of the statement of desire. (Emphasis in letter).

Counsel for the Applicant also makes reference to the fact that the Applicant committed itself to positions at the meeting with Board Officer Reilly on the basis that there was no relevant statement of desire, and that both the Applicant and the Respondent consented to the Board issuing a decision without further hearing through execution of the Waiver of Hearing form at that time. The Applicant submits that it is prejudiced if the Board now considers the statement of desire after these positions have been taken and the Waiver of Hearing executed. In response to these concerns, we simply note that any possible prejudice to the Applicant and the Respon­dent can easily be remedied. Both parties took positions and agreed to a waiver on the basis of a mistaken set of facts and circumstances. As a result, the waiver can and should be set aside, and the parties should be permitted to reassess their positions in light of the true facts and circum­stances that apply. This would eliminate any possible prejudice that might otherwise result.

By way of conclusion, we note that the Counsel for the Applicant suggests that any consider­ation of a statement of desire under these circumstances would interfere with the Board's "abil­ity to provide finality to an application for certification or any other proceeding". While we agree that a concern with providing finality is an important consideration for the Board in an application such as this, it is more important that such finality not be achieved at the expense of making a decision that may not reflect the true wishes of the parties affected. As we have already noted, if our submissions made at the hearing on November 24th for a dismissal of the application for certification are rejected, there are already additional elements of uncertainty presented in such application by the fact that the membership evidence is in the form of photo­copies. To issue a decision without consideration of the statement of desire simply adds to the uncertainty, and takes it to what we submit is an unacceptable level. Finality should not be achieved at so high a cost.

For all of these reasons, we again submit that the Board's discretion in this case should be exer­cised in favour of consideration of the statement of desire.

8. On January 26, 1990, the Registrar received the following letter dated January 19, 1990, from the representative of the objectors:

(Name)

(Address)

(Telephone Number)

January 19/90

Re: United Steelworkers of America and American Barrick Resources Corporation.

Board File No.: 1879-89-R

I acknowledge receipt of your letter dated Jan. 09/90. As per the comments concerning this mat­ter. I didn't appear before the board on Nov. 24th on behalf of the concerned employee's objecting to oppose the application of the United Steel Workers Union of America, due to the fact that I was not contacted or made aware that I or other concerned employees should have been at that meeting.

We had to start somewhere, when this all began (the opposition) not being familiar with proce­dures of any kind, I contacted the Labour Relations Board, at which time the only thing I was told was to get a petition signed, there was no mention of dating such or anything else. So I went ahead just as I was explained and did just that, and to mail them which I did on time. Also enclosed was a letter requesting that if there was a meeting could it be held at a centre close to our area, and hoping to hear from you soon.

However, I received no contact by the board. And a meeting took place as planned. I only received a letter from the board dated November 29th 1989 of receiving 68 statements to oppose but only after the meeting was held. To this date we still feel very strongly that a Union is unnecessary, and in discussing this with the concerned employee's (sic) it's a waste of money all around.

We may be miners but we hope our concerns counts for something. Hopefully will hear from you soon.

(Name)

(Signature)

9. On February 8, 1990, the Registrar received the following letter from counsel for the respondent:

Re: United Steelworkers of America, and American Barrick Resources Corporation

Board File No. 1879-89-R

We are in receipt of the Board's correspondence enclosing a copy of a letter dated January 19, 1990 from an objecting employee, and inviting comments in respect of such letter.

We wish to point out that the January 19, 1990 letter appears to confirm the assumptions that were made in our submissions to the Board dated January 4, 1990. Particularly, it would appear that a Statement of Desire was filed in timely fashion, along with a letter requesting a change in venue for the hearing. Further, it would appear that the objecting employees expected a response to their request before the hearing actually proceeded, but were not contacted by the Board in this regard.

As indicated in our submissions of January 4, 1990, it is our position that it was reasonable for the objecting employees to assume that further contact would be made by the Board prior to the hearing taking place, especially in light of the fact that the objecting employees appear to be unrepresented by counsel familiar with the Board's procedures. We submit that in these circum­stances the Board's discretion should be exercised in favour of a consideration of the Statement of Desire.

As we have noted, there are potentially significant levels of uncertainty presented in this appli­cation by the fact that the membership evidence is in the form of photocopies. To fail to con­sider the apparent wishes of such a large number of objecting employees would further com­pound the problems of uncertainty. We would submit that these problems are best resolved by a secret ballot vote amongst all employees affected by the application. At the very least, full con­sideration should be given to the Statement of Desire before any decision on the application is made.

10. On February 12, 1990, the Registrar received the following letter from counsel for the

applicant:

Re: United Steelworkers of America and American Barrick Resources Corporation;

Board File: 1879-89-R; Our File: OLRB-868

We have received from your office a copy of a letter dated January 19, 1990, respecting the above captioned matter. You requested submissions by February 9, 1990. Jim Bowman of your office granted our request for an extension of the due date for submissions until today's date.

The Applicant maintains its objection to the Board's consideration of the petition in this matter. The Applicant reiterates and relies upon the representations set forth in its letters dated January 3, 1990 and January 15, 1990. If the Board intends to enquire into the voluntariness of the peti­tion based upon the statements contained in the letter of January 19, 1990, particularly the rep­resentation that the letter writer and other concerned employees were unaware that they should have been at the first scheduled hearing date of November 24, 1989, the Applicant respectfully request that the Board convene a hearing. The Applicant will call evidence respecting, inter alia, the issue of whether or not the petitioners were aware that they should have attended at the Board on November 24, 1989.

Thank you for your attention to this matter.

11. The Board has considered the representations before it. The representative of the objectors clearly had notice of the hearing date of this application for certification. This hearing date was set forth in Form 6, Notice to Employees of Application for Certification and of Hearing in paragraph two thereof. Paragraph 5 of Form 6 sets forth the consequences of failure to attend the hearing and states:

12. IF YOU DO NOT ATTEND AT THE HEARING, THE BOARD MAY PROCEED IN YOUR ABSENCE AND YOU WILL NOT BE ENTITLED TO ANY FURTHER NOTICE IN THE PROCEEDINGS.

Sections 73(5) and 80(2) of the Board's Rules of Procedure state as follows:

73(5) The Board may dispose of the application without considering the statement of desire of any employees who fails to appear in person or by a representative and adduce evidence that includes testimony in the personal knowledge and observation of the witness as to,

(a) the circumstances concerning the origination of the statement of desire; and

(b) the manner in which each signature on the statement of desire was obtained.

80(2) Where a person is served with a notice of hearing by the registrar or is informed of the hearing by posting and fails to appear at the hearing, the Board may dispose of the application or complaint without further notice to the person and without considering any statement filed by him.

12. There is no doubt that the representative of the objectors had knowledge of the time and place of the scheduled hearing. The consequences of not attending the hearing are clearly set forth both in Form 6 and in sections 73(5) and 80(2) of the Board's Rules of Procedure. There is, however, a written request before the Board for a change in venue of the scheduled hearing to a place more convenient to the objectors. Due to an administrative problem, this written request was unfortunately not brought to the attention of the Registrar until after the scheduled hearing had been held in Toronto. The Board does not agree with the proposition that in these circumstances it is reasonable for the objectors to assume that the scheduled hearing would not proceed as provided in Form 6 without further contact and advice from the Registrar. If the Board were to accept this proposition it would mean that, if any party to a proceeding merely sent in a request to adjourn or change the venue of a hearing, such a party could safely assume that its request would be complied with regardless of the ability of the Board to act upon such a request or the willingness of any other party or parties to consent to such a request. The Board would be severely restricted in the sched­uling of cases and in its administrative operations generally.

13. The arguments before the Board raise issues of fairness to all parties and the efficacy

and integrity of the Board's procedures in the light of the circumstances of this application for cer­tification. In Russell Mac Vicar Limited, [1980] OLRB Rep. July 1049, the Board stated at page 1053:

6. ... [It] is well established that a mistake by a party or its counsel, which results in a failure to attend a Board hearing is not a ground requiring reconsideration of a Board decision or a rehearing of the original matter. (See Canadian Union of General Employees, [1975] OLRB Rep. Apr. 320; Soo Dairies Ltd., [1968] OLRB Rep. Mar. 1183). One of the principal purposes of an administrative agency is to process the matters that come before it with expedition and economy. This value can only be achieved if there is finality to the Board's decisions in the vast majority of cases. To rehear cases because one party made a mistake and neglected to attend a hearing would substantially impair this end. This is especially the case, where, as here, there has been clear notice and explicit instructions from a solicitor that the respondent should appear.

Failure to appear at a hearing where counsel for objecting employees made an erroneous assump­tion that he would receive a second notice of hearing from the Board caused the Board to dismiss a request for reconsideration of an application for certification. See Soo Dairies Limited, [1968] OLRB Rep. April 115.

14. A recent case of the Board dealt with a situation where counsel had made a mistaken assumption based upon a telephone conversation with the Registrar and failed to attend a scheduled hearing. In The Corporation of the City of Sault Ste. Marie, [1987] OLRB Rep. Oct. 1319, the Board stated at page 1329:

15. Counsel for the respondent admits a mistaken assumption and states that simple fairness is required. The concept of simple fairness is more than a subjective assessment of the conse­quences of a false assumption and the feelings of a client who is "quite upset". The concept of simple fairness must surely be an objective assessment of all the circumstances such as the rea­sonable and legitimate expectations of the applicant and intervener #2 under the administration of the Labour Relations Act. The applicant and intervener #2 commenced proceedings under the Labour Relations Act and attended a scheduled hearing in order to obtain the remedies they sought. In labour relations, time is of the essence....

16. It appears to the Board that an error based upon an unwarranted and false assumption by counsel for the respondent led to the failure of counsel to attend before the Board on August 6, 1987. As the Board held in Addressograph-Multigraph of Canada Limited, [1968] OLRB Rep. March 1183, counsel's responsibilities are no less onerous that the responsibilities imposed on a party in any proceedings and a party cannot evade the results of mistakes made by counsel retained by a party. The Board has made its decision after a hearing held after sufficient and adequate notice to all parties of such hearing. The Board is not prepared to reconsider its deci­sion in this matter. The absence of counsel through his own false assumptions is not a ground for reconsidering a decision of the Board pursuant to section 106(1) of the Labour Relations Act. The Board notes that the respondent has not alleged that it had new evidence which could not previously have been obtained by reasonable diligence and that such evidence, if adduced, would be practically conclusive as contemplated in Canadian Union of General Employees, [1975] OLRB Rep. April 320.

An application for judicial review was dismissed by the Divisional Court and leave to appeal was denied.

In the instant application, there was apparently also a mistaken assumption which arose wholly in the mind of the representative of the objectors without any intervention by the Board. The posi­tion of the representative of the objectors is no higher than the position of counsel. The applicant and the respondent attended the hearing before the Board and conducted themselves, made repre­sentations and adopted positions with respect to the composition of the bargaining unit based upon the state of affairs made known to them at the hearing. As the Board stated in The Corporation of the City of Sault Ste. Marie, consideration of fairness require an objective assessment of all the cir­cumstances. In the instant case, the applicant and the respondent attended the scheduled hearing. The representative of the objectors who also received notice of the scheduled hearing elected not to attend apparently based upon a mistaken assumption which was of his own making. In these cir­cumstances, the Board proceeds to entertain this application for certification and is not prepared to schedule a hearing in order to consider the statements in opposition to this application. The state­ments in opposition are accordingly dismissed.

15. The name of the respondent is amended to read: "American Barrick Resources Corpo­ration carrying on business as Holt-McDermott Mine".

16. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

17. Having regard to the agreement of the applicant and the respondent, the Board further finds that all employees of the respondent in Holloway Township, save and except forepersons/supervisors, persons above the rank of foreperson/supervisor, office, clerical, sales and technical employees and students employed during the school vacation period, constitute a unit of employees appropriate for collective bargaining.

18. The evidence of membership, which was filed by the applicant on or prior to the termi­nal date set by the Board, consisted of photocopies of the membership cards. Counsel for the applicant advised counsel for the respondent of this state of affairs in a letter dated November 22, 1989, which was faxed on that date. The hearing in this matter was held on November 24, 1989. Counsel for the applicant presented the facts surrounding the events which led to the filing with the Board of photocopies of the membership evidence rather than the original membership evidence. Counsel for the applicant informed the Board that he had witnesses present who were able to give evidence with respect to the facts which he presented to the Board. Formal proof of the facts asserted by counsel for the applicant was not necessary because counsel for the respondent accepted the assertions by counsel for the applicant as being the relevant facts with respect to the circumstances under which the photocopies of the evidence of membership came to be filed with the Board. Counsel for the respondent did not call any evidence in this regard. The Board there­fore proceeded on the basis of an agreed statement of facts which is set forth in the next paragraph.

19. The applicant filed photocopies of the evidence of membership on or before the termi­nal date of this application for certification with respect to those persons who made application to join the applicant. The original evidence of membership consisted of individual membership cards which were packaged and forwarded together with a binder. In the binder were photocopies of the evidence of membership. This material was forwarded from Kirkland Lake to the Legal Depart­ment of the applicant by priority post. The envelope which was used was a brown paper padded envelope such as might be used to send a book through the mails. The envelope was closed by means of staples and was received in Mr. Shell's office on November 7, 1989. Mr. Shell's secretary recalls that upon receipt the envelope was taped. The envelope had been opened by pull string and its contents were removed. The membership cards were not in the envelope. The envelope had been packed in Kirkland Lake with membership cards and photocopies of the membership evi­dence by Wes Dowsett personally. The photocopies of the membership evidence which were placed in the package by Mr. Dowsett who is a casual employee of the applicant and who works as an organizer. The envelope had been forwarded to the applicant so that the membership cards could be filed with the Board on or before the terminal date of November 16. The applicant has searched and checked and concludes that the membership cards have been lost. Mr. Dowsett has reconstructed the package by placing the same number of other membership cards therein and has ascertained that the package weighed the same as when it was initially mailed. The stapled enve­lope had been opened accidentally or otherwise and was resealed by the Post Office. The applicant discovered that the membership cards were missing on November 10 and on November 12 learned with certainty that none of its personnel had the membership cards. The applicant filed photoco­pies of the membership cards on or before the terminal date and advised the Board that it did not rely upon the membership evidence with respect to one person. The applicant engaged in a strenu­ous Form 9 inquiry and as an appendix to Form 9, Declaration Concerning Membership Docu­ments, disclosed as follows:

APPENDIX "A"

The membership evidence submitted in support of the application for certification consists of photocopies of individual applications for membership to the United Steelworkers of America. The applicant hereby confirms that each of the collectors of the memberships for application has confirmed the authenticity and validity of each document filed in support of membership in the Steelworkers and that has been filed in support of the application for certification.

In submitting this Form 9 Declaration and Appendix the applicant notes that because of excep­tional circumstances (see cover letter) it must rely upon the photocopies of membership evi­dence. Accordingly, the applicant has undertaken an exceptionally rigorous review and confir­mation of the validity of the membership evidence in support of the application for certification.

The applicant is prepared to bring evidence as to why it is relying upon the photocopied membership evidence in this case.

With regard to the membership evidence filed on behalf of:

1. (Name), the applicant states that the correct date of signing for request of membership in the applicant, payment of the $1.00 and collection of the $1.00 is August 30, 1989.

2. (Name), the applicant states that the correct date of signing for request of membership in the applicant, payment of the $1.00 and collection of the $1.00 is September 1, 1989.

As a result of not being able to ascertain who collected one card, the applicant asked that it not be relied upon. The membership cards have been lost. This loss is not due to any negligence by the applicant. On November 14, the applicant filed an Application for Indemnity or Service Inquiry with Canada Post Corporation. Such an application initiates a trace internally for the contents of the package. However, the applicant has not received an official response from Canada Post Cor­poration.

20. The applicant argued that the Board ought to accept the membership cards in the form of photocopies since the membership cards in this form had been filed with the Board on or before the terminal date together with a Form 9, Declaration Concerning Membership Documents with a full disclosure of the circumstances. The applicant further argued that the membership cards in the form of photocopies ought to be accepted by the Board because the Board could be satisfied that a majority of persons in the bargaining unit have requested membership in the applicant and have paid one dollar. It was the position of the applicant that while membership cards filed with the Board normally bear fresh ink, the Board has quite properly accepted membership cards in the form of photocopies. The applicant also adopted the position that the Board should not inquire further to see the colour of the fresh ink where the applicant had raised the matter before the Board and counsel for the respondent and had disclosed the circumstances in Form 9. It was argued by the applicant that whether the Board received an original membership card completed in blue ink or a photocopy which indicated black ink the Board was still in timely possession of and ought to accept either version since both versions were documentary hearsay. The applicant emphasized that inquiries made pursuant to Form 9 confirmed the payment of one dollar to the collector shown thereon.

21. The respondent informed the Board that it was prepared to accept the facts as recited by counsel for the applicant including the Form 9, Declaration Concerning Membership Docu­ments. The respondent adopted the position that the Board ought not to accept the membership evidence in the form filed by the applicant. The respondent argued that section 73(1) and (2) of the Board's Rules of Procedure provided a statutory obstacle to the acceptance of the membership evi­dence in the form filed by the applicant. Section 73(1) and (2) provide as follows:

73.-(1) Evidence of membership in a trade union or of objection by employees to certification of a trade union or a signification by employees that they no longer wish to be represented by a trade union shall not be accepted by the Board on an application for certification or for a decla­ration terminating bargaining rights unless the evidence is in writing, signed by the employee or each member of a group of employees, as the case may be, and,

(a) is accompanied by,

(i) the return mailing address of the person who files the evidence, objection or signification, and

(ii) the name of the employer; and

(b) is filed not later than the terminal date for the application.

(2) No oral evidence of membership in a trade union or of objection by employees to certifica­tion of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall be accepted by the Board except to identify and substantiate the written evidence referred to in subsection (1).

The respondent argued that the Board was required to give effect to the mandatory provision which required that the Board not accept evidence unless it is in writing and signed by the employee. The respondent further argued that oral evidence of membership could not be accepted except to substantiate the written evidence of membership and that the applicant could not cure an irregularity. A series of photocopies could not be regarded as being signed by persons who were held out as supporting the applicant. It was the view of the respondent that the applicant should be required to have membership cards signed again. The respondent also argued that the difference between originals and photocopies was more than a mere difference in the colour of the ink. It was the view of the respondent that the usual comparison of signatures between those appearing on membership cards and specimen signatures could not be undertaken with the same degree of confi­dence where the original membership cards are not present. It was also the view of the respondent that with photocopies it was possible to hide or change information by employing "white out", such as, for example, the changing of a date on a membership card by an organizer. The respon­dent reasoned that since the Board exacts the highest standards with respect to membership evi­dence it should require the highest standards of integrity and be vigilant to see that there were no additional irregularities which could occur when photocopies are relied on rather than original doc­uments.

22. The Board has previously considered applications for certification where an applicant did not file membership evidence in its original form. In Praetor Enterprises Limited, [1983] OLRB Rep. Apr. 592, the Board listed an application for hearing and stated that the purpose of the hear­ing was as follows:

Applications made pursuant to the construction industry provisions of the Labour Relations Act normally do not require that a hearing be held by the Board. In the present instance, the Board has not received the evidence of representation in support of this application nor has it received a Form 80 as required by the Board's Rules of Procedure. The position taken by the applicant trade union is that prior to the terminal date, the evidence of membership and the Form 80 were sent by registered mail to the Board. The Board has not yet received these documents. In these circumstances, the Board directs that the Registrar list this matter for hearing. At the hearing in this matter, the Board will hear viva voce the evidence of the applicant trade union concerning the mailing by registered mail of the evidence of membership and the Form 80. The Board will then base its decision in this application for certification on that evidence.

At the hearing a business representative of the applicant gave evidence that he handled the appli­cation for certification and that he mailed by registered mail to the Registrar an envelope contain­ing certain membership documents and a Form 80, Declaration Concerning Membership Docu­ments, Construction Industry. In support of this statement he presented a registration receipt from Canada Post for March 28, the date on which he mailed the letter, listing amongst other things, a letter sent by registered mail to the Registrar. The business representative also filed with the Board photocopies of five membership documents enclosed in the envelope. The business representative testified that the applicant had instituted a search with Canada Post on April 12. As of the date of hearing, the search had revealed nothing further about the missing envelope. The Board accepted the evidence of the business representative that the documents referred to were mailed by registered mail prior to the terminal date of the application. The Board specifically found that the applicant had filed and recited the details of the membership evidence as set forth on the photocopies. In The Norfolk County Board of Education, [1974] OLRB Rep. March 182, the Board commented upon a situation where photocopies of membership evidence were filed without being disclosed in advance. At pages 183 and 184, the Board stated as follows:

4. The Board has examined with some concern the evidence of membership filed by the appli­cant in support of its claim for bargaining rights. They are photocopies of documents that pur­port to indicate that the undersigned in each case is an office employee in the employ of the respondent, that each is a member of the applicant trade union, and that the required initiation fee was paid. Save in two circumstances, the signatures purport to reflect copies of the counter­signature of the treasurer of the applicant and a date appears on each of the documents described herein. In the case of two documents, the signature of the treasurer seems to have been penned in after the photocopies were taken.

5. The Board usually relies on the "best evidence" in accepting documents indicating the volun­tary wishes of employees to be members of a trade union. The Board relies heavily on such evi­dence and normally accepts documents indicating membership in a trade union at face value. In this regard such reliance is usually predicated upon the filing of the authentic, original member­ship cards. The Board imposes such strict standards with respect to the acceptability of such evi­dence in order to avoid the onerous task of requiring oral testimony of each and every person who purports to be a member of a trade union pursuant to an application for certification. In short, the practice of the Board in satisfying itself of the true and voluntary wishes of employees who desire to be members of a trade union is to rely on "the best evidence" available.

6. The hazard of accepting photocopy evidence is indicated in the two instances referred to in paragraph #4 herein. In those instances, the signature of the treasurer is handwritten on two cards. That is to say, in those examples the photocopies are not a true replica of the original cards. It is noted that this matter was not disclosed in the Form 8 [now Form 9], Declaration Concerning Membership Documents. It follows, therefore, that for the Board to accept the membership evidence filed by the applicant we would have to condone an obvious (whether intended or not) misrepresentation. The Board, therefore, does not hesitate to set aside all of the applicant's evidence of membership.

7. In order that the Board's decision be not misunderstood, it wishes to add the following for the applicant's benefit. The Board, in most circumstances, will require that documents purporting to be membership cards be filed in their original form. Nevertheless, there may very well be cir­cumstances where photocopy evidence may be the only evidence available for purposes of estab­lishing a claim to representative rights. In such instances, the Board is of the opinion that the matter of the photocopy evidence should be disclosed in advance and that the applicant be pre­pared, at the hearing, to establish the authenticity of such evidence.

8. The application is therefore dismissed.

9. In the instant application, the applicant seeks to rely on the best evidence available and has adopted the advice of the Board set forth in The Norfolk County Board of Education. The facts set forth by the applicant have not been challenged by the respondent. The respondent had the opportunity to cross-examine the declarant of the Form 9. The photocopies of the membership evi­dence which the applicant has filed are in writing and are signed by the employee. The applicant is relying on secondary evidence. In The Law of Evidence in Civil Cases 1974, by Sopinka and Lederman, the authors set out at page 281 the circumstances under which secondary evidence is admissible as follows:

Secondary evidence may be admitted when the court is satisfied that the original document existed and it has been lost or destroyed. Proof of its loss or destruction need not be made by direct evidence but may be proved presumptively by showing that a reasonably diligent search has been made in the places where the document was likely to be found. Whether the inference of loss will be drawn by the court depends upon the sufficiency of the evidence of the search made to find it.

See also Re Beukenkamp et al. v. The Minister of Corporate Affairs (1974), 1973 CanLII 2261 (FC), 43 D.L.R. (3d) 118, where the Federal Court ruled that a photocopy of a share purchase note was admissible in evi­dence upon satisfactory proof of the destruction of the original or loss of the original by showing it cannot be found after a diligent search. The issue of copies of originals has also been recently con­sidered by the British Columbia Supreme Court in Beatty v. First Exploration Fund 1987 and Company, Limited Partnership (1988) 1988 CanLII 3066 (BC SC), 25 B.C.L.R. (2d) 377 where the court considered a partnership agreement which provided that proxies should be "written" and "signed by the appointor". Some of the proxies had been faxed in a timely manner. The court observed that the law had to take cog­nizance of technological advances in means of communication and that a faxed copy was essentially a photocopy of the original and should be considered as both "written" and "signed".

24. The applicant is faced with the loss of its original membership evidence through no fault of its own. The applicant has searched diligently and has done all in its power to find the original membership cards. The Board does not agree that in these circumstances the application ought to be dismissed with the applicant being left to contemplate whether it will re-sign the employees who signed the lost membership cards.

25. The evidence of the membership which has been filed by the applicant, although mechanically reproduced, is in writing as required by section 73(1) of the Board's Rules of Proce­dure. On the evidence before it, the Board is satisfied that the evidence of membership establishes that the persons, on whose behalf the evidence of membership has been filed, have applied for membership in the applicant and have paid to the applicant on their own behalf an amount of at least one dollar in respect of initiation fees in the applicant. The Board is therefore satisfied that these persons are members of the applicant within the meaning of section 1(1)(l) of the Labour Relations Act.

26. The circumstances in this application are highly unusual and the applicant has fully dis­closed these circumstances to the Board. While the Board, on the facts before it, is prepared to accept the photocopies as satisfying the requirements for evidence of membership, it is emphasized that the Board will ordinarily require the best evidence which is available, namely, original evi­dence of membership, to be filed with the Board in support of an application for certification.

27. As was stated previously, the applicant and the respondent agreed on the description of the bargaining unit. However, the applicant and the respondent did not agree on the inclusion of certain persons in the bargaining unit. The respondent challenged the inclusion of the following persons for the reasons stated:

Brian Camerand - Exercises managerial function within the meaning of section 1(3)(b)

William Barker - “

Yves Bouchard - “

Gordon Fey - “

Lorne Tyler - “

Florent Guilbert - Is an office and clerical employee

Gary Durling - Is a technical employee

Doug MacFarlane - Exercises managerial functions within the meaning of section 1(3)(b)

Paul Gratton - Not included for the purposes of the count under Board’s 30/30 rule.

Vicky Mudrick - Is an office and clerical employee.

A Labour Relations Officer is authorized to inquire into and report to the Board concerning the duties and responsibilities of these persons with the exception of Paul Gratton where his atten­dance is in dispute.

28. The Board has determined, however, that the applicant's right to certification cannot be affected by the Board's ultimate decision as to the inclusion or exclusion of the disputed classifica­tions. On the basis of all the evidence before it, the Board is satisfied 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 November 16,1989, 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 said Act.

29. Accordingly, the Board pursuant to its discretion under section 6(2) of the Act, certifies the applicant as the bargaining agent pending the final resolution of the persons in dispute.

30. A final certificate must await the final determination of the persons in dispute or an agreement on the same.

CONCURRING OPINION OF BOARD MEMBER W. H. WIGHTMAN; March 1, 1990

1. The law entitles the applicant union to deny the objectors an opportunity to have their petition tested to determine if the Board should order a secret ballot vote to determine the wishes of employees as to whether they shall be represented by the union.

2. The Board has no discretion in the matter. It is entirely up to the union to decide whether the petitioners will be heard. The union has insisted on its legal right to be certified with­out the objectors being heard. While the decision of the union is correct in law, it remains to be seen whether it will assist the union in winning the ongoing support of the objectors, and others, in the bargaining unit or whether it will lead those whose voices were not heard to seek decertifica­tion of the union during the first open period.