The Bricklayers, Masons Independent Union of Canada, Local 1 v. Amac Masonry Limited
[1991] OLRB Rep. May 584
1236-90-R The Bricklayers, Masons Independent Union of Canada, Local 1, Applicant v. Amac Masonry Limited, Uni-Tri Masonry Limited, Elgi Masonry Limited, Uni-Tri Masonry (1989) Limited and Bricknology Masonry Limited, Vercillo Brothers Masonry Limited, Scenic Masonry Limited, Respondents
BEFORE: G. T. Surdykowksi, Vice-Chair, and Board Members W. A. Correll and R. R. Montague.
DECISION OF THE BOARD; May 23, 1991
- At the hearing on May 21, 1991, and again by letter dated May 22, 1991, counsel for the respondent's Amac Masonry Limited and Uni-Tri Masonry Limited requested an adjournment of the May 31,1991 hearing date scheduled in this matter. The basis for counsel's request is set out in his May 22, 1991 letter as follows:
Further to the commencement of the hearing of evidence in this case on Tuesday, 29th, 1991, Isic] and my submissions to the Board at the close of the hearing, I would request that the hearing date of May 31st, 1991 be cancelled and the matter adjourned for completion to the first of the remaining dates set of September 9th, 10th, 11th and 16th, 1991. 1 believe these remaining four dates should be sufficient to complete the case now that there is an agreed statement of the major facts in the case as well as an admission, without formal proof, of the majority of the exhibits.
The adjournment is requested as Counsel is before the Board on May 31st, 1991 in regards to Board Files 2920-90-R and 3054-90-U. These files deal with a certification application, which is going into its third day of hearing. The date of May 31st, 1991 was set along with 9 other hearing dates before I became Counsel on the matter.
While I was aware of the conflict with the dates, I had not anticipated that the case would in fact be litigated in the fashion it has and that I would have to attend the hearing on May 31st, 1991.
This is not the type of case on which I can brief another counsel to attend on May 31st, 1991 nor are the other two files ones in which I can properly brief another counsel to act.
In view of the above, I would ask the Board to grant an adjournment of the May 31st, 1991 hearing to accommodate counsel.
It is, of course, for the Board and not for the parties, or any of them, to determine the Board's practices and procedures. The Board's discretion with respect to determining whether an adjournment should be granted is a broad one. In that respect, it has long being recognized that labour relations delayed or labour relations defeated and denied (See Journal Publishing Co. of Ottawa Ltd. et al v. Ottawa Newspaper Guild, Local 205, OLRB et al, (March 31, 1977), Ontario Court of Appeal, unreported). It is well known that, in recognition of that reality, the Board will normally not grant an adjournment except on consent of the parties, or if it is satisfied that there are exceptional extenuating circumstances such that an adjournment is merited. A party which has had adequate notice of a hearing does not have a right to have it adjourned for the convenience of itself or its representative (Re: Flamboro Downs Holdings Ltd. and Teamsters Local 1879, (1979), 1979 CanLII 1669 (ON HCJ), 24 OR. (2d) 400 (Ont. Div Court).
In this case, the parties and their counsel were consulted and specifically agreed to the hearing dates (including May 31, 1991) scheduled for it. Even though he knew of these dates, counsel for Amac Masonry Limited and Uni-Tri Masonry Limited accepted a retainer in another matter in which hearing dates had already been set, one of which dates conflicted with the May 31, 1991 hearing date in this matter. In doing so, counsel knowingly ran the risk that this conflict would not disappear as he anticipated or hoped it would.
In our view, the difficulty in which counsel finds himself is one of his own making, and the circumstances do not justify an adjournment of this proceeding merely to convenience him.
The applicant has refused to consent to an adjournment of the May 31, 1991 hearing as requested. In the absence of consent from all parties, we are not prepared to grant an adjournment as requested by counsel. This matter will therefore proceed on May 31, 1991 and the other hearing dates as previously scheduled.