[1991] OLRB Rep. May 642
3225-89-G Carpenters & Allied Workers Local 27 United Brotherhood of Carpenters & Joiners of America, Applicant v. King Edward Cabinets, Respondent
BEFORE: Judith McCormack, Vice-Chair, and Board Members W. N. Fraser and C. A. Ballentine.
APPEARANCES: Mike McCreary and Mike Yorke for the applicant; no one appearing on behalf of the respondent.
DECISION OF THE BOARD; May 9, 1991
This is a grievance referral under section 124 which first came before the panel on August 29, 1990. At that time the applicant presented the Board with evidence that King Dean Yee had been properly served with a subpoena duces tecum, together with the appropriate conduct money summoning him to appear on August 29, 1990. Mr. Yee did appear and the panel heard his submissions and those of the applicant. We then ruled orally that we would grant an adjournment sine die in the circumstances described in our written decision of August 31,1990. However, as set out in that decision, the Board directed Mr. Yee to appear at any subsequent hearing dates in this matter in accordance with the subpoena unless the applicant notified him to the contrary.
This matter was brought back on for hearing by the applicant and Mr. Yee was sent a notice of hearing for April 18, 1991. Prior to that date his counsel wrote to the Board acknowledging, among other things, that his client had received the notice of hearing. On April 18th, the Board waited until 10:00 a.m. but Mr. Yee did not appear. The applicant requested that the Board issue a warrant for Mr. Yee's arrest.
We have no doubt that Mr. Yee knew he was required to appear on April 18th, 1991. The subpoena served on him summoned him to attend at the hearing on August 29th, 1990 "and so on from day to day until the hearing is concluded". Mr. Yee knew the hearing was not concluded on August 29th, 1990 and indeed the Board specifically ordered him on August 29th to appear at any subsequent hearing dates. This oral direction was then incorporated into the Board's written decision of August 31st, which was sent to Mr. Yee. The Board notified Mr. Yee of the subsequent hearing date of April 18th, 1991 by a notice of hearing dated March 8, 1991. We also heard sworn evidence from Michael McCreary that the applicant had not advised Mr. Yee that it was not necessary for him to appear.
The Board's authority to issue a warrant in these circumstances is set out in section 124(3) which applies section 44(8) to proceedings under section 124. Section 44(8)(a) provides as follows:
44.-(8) An arbitrator or the chairman of an arbitration board, as the case may be, has power,
(a) to summon and enforce the attendance of witnesses and to compel them to give oral or written evidence on oath in the same manner as a court of record in civil cases; and
The Board's powers in this regard were reviewed in Re International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 and Master Insulators Association of Ontario, et al, (1979) 25 O.R. (2d) 9, and Casalbil Contractor Limited, [1980] OLRB Rep. Sept. 1278. In the latter case, the Board said as follows:
The Board is given the authority under the Act to enforce the attendance of a witness in the same manner as a court of record in civil cases. In Ontario, a court of record in civil cases has the authority to issue a warrant for the arrest of a person who has been duly served with a summons but has failed to appear. (See 26 C.E.D. (Ont. 3rd) 114-366, paragraph 673; Rule 275, Supreme Court of Ontario Rules of Practice.) The issuing of a warrant directed to the Sheriff to bring a person before the Board is to be distinguished from punishing a person for contempt committed in the face of the Board. The Board, in issuing such a warrant, is not punishing the witness for failing to attend. Indeed, it is our view that we cannot impose punishment for such action. (See Re: Hawkins and Halifax County Residential Tenancies Board, (1974), 1974 CanLII 1372 (NS SC), 47 D.L.R. (3d) 117 (N.S.S.C.).) Rather, it is ensuring that the witness attend before the Board to give evidence pursuant to a summons duly issued and served. However, should a witness refuse to testify after having been brought before the Board and after being directed by the Board to testify, such refusal may well constitute grounds for punishment by way of fine or imprisonment for contempt committed in the face of the Board. (See Re: Diamond and Ontario Municipal Board, 1962 CanLII 132 (ON CA), [1962] OR. 328; 32 D.L.R. (2d) 103.)
The Board may, therefore, enforce the attendance of a witness duly served with a summons and conduct money by issuing a warrant directing the Sheriff to arrest the witness and bring him before the Board if the party seeking such an order can establish that the witness was properly served with a summons and sufficient conduct money and that the presence of the witness is material to the ends of justice.
At the hearing on April 18th, we were satisfied that Mr. Yee was properly summoned to appear on dates that included subsequent hearing dates, that he was directed orally to appear on subsequent hearing dates, that he was notified of the subsequent hearing date of April 18th, that he failed to appear on that date and that his presence is material to the ends of justice. As a result, we indicated to the applicant that we were prepared to issue a warrant for the arrest of Mr. Yee.
Since that time, however, we have reconsidered the matter on our own motion. We note that in Sentry Department Stores Limited, [1964] OLRB Rep. Feb. 642 and National Dry Company Limited, [1982] OLRB Rep. May 713, the Board drew a distinction between the continuing effect of a summons where a hearing was adjourned to another stated date, and where a hearing was adjourned sine die. In the latter case, the Board said as follows:
The effect of a Board summons can, as the respondent points out, be continued from day-to-day as the hearing progresses, without the need for reissuing or re-serving a Summons, subject to the following provisos:
(a) the required amount of conduct money for attendance and travel must be paid for each day of attendance, and
(b) the witness must receive official notification of the time and place of continuation.
Requirement (b) may be met on the face of the summons itself, or may be met by the Board prior to adjourning the hearing advising the witness of the next scheduled date. When a hearing is adjourned sine die, however, the Board is obviously not in a position to accommodate the summoning party by following the latter procedure.
In the instant case, our initial view was that the combination of the original summons, the Board's direction to Mr. Yee to re-attend on any subsequent hearing dates and the Board's notice of hearing for a subsequent hearing date satisfied the requirement that Mr. Yee receive official notice of the time and place of continuation. Subsequently, we have had some doubts in this regard. It is true that the Board did direct Mr. Yee to re-attend on any subsequent hearing dates, and in that sense, this case can be distinguished from those where the Board has adjourned a matter sine die without such a direction. In addition, while a notice of hearing might not alone serve as the kind of official notice which would found a warrant (see Standard Insulation Limited, [1984] OLRB Rep. Feb. 383), in this case it was linked to the Board's direction to re-attend. On the other hand, we did not specify a particular date at the time of our direction because the matter was adjourned sine die. As a result, this fact situation falls into a grey area in jurisprudential terms.
The Board has said previously that the power to issue a bench warrant ought to be used with caution and fairness since it is a serious step affecting personal liberty. (Standard Insulation Limited, supra). In these circumstances where we have some doubt as to the technical foundation for a warrant, we have decided not to issue one, despite our view that Mr. Yee was aware of his obligation to attend. Of course, there is nothing to prevent the applicant from serving Mr. Yee with a fresh subpoena and conduct money in the interval between now and the next hearing date on June 10, 1991, and we are certainly prepared to entertain a request for a warrant on that date, should it be necessary to do so.
We direct that a copy of this decision be sent to both Mr. Yee and his counsel.