International Brotherhood of Electrical Workers' Local 353 v. Bemar Construction (Ontario) Inc., 1992 CanLII 6333

[1992] OLRB Rep. May 565

3661-91-R; 3646-91-G; 3656-91-R International Brotherhood of Electrical Workers' Local 353, Applicant v. Bemar Construction (Ontario) Inc., Respondent; International Brotherhood of Electrical Workers' Local 353, Applicant v. J.C. Electrical, Division of 948641 Ontario Limited, Respondent; International Brotherhood of Electrical Workers' Local 353, Applicant v. 948641 Ontario Limited c.o.b. as J.C. Electrical, Bemar Construction (Ontario) Inc., Respondents

BEFORE: R. O. MacDowell, Alternate Chair, and Board Members F. B. Reaume and J. Redshaw.

APPEARANCES: Elizabeth Mitchell and Michael Oram for the applicant; Lawrence Ryan and Youssef Daou for Bemar Construction; John Calderon for J. C. Electrical.

DECISION OF THE BOARD; May 5, 1992

I

1. This is an application for certification which was scheduled for hearing together with a related application under section 1(4) of the Labour Relations Act, and a reference to arbitration under section 126 [formerly 124] of the Act.

2. These applications are related because, in essence, the union is pleading in the alternative. In the certification application, the union seeks to establish bargaining rights for electricians working for Bemar. In the 1(4) application, the union asserts that Bemar and J.C. Electrical are really "one employer" for labour relations purposes, because J.C. Electrical is a mere shell that, in reality, is an emanation of Bemar, in separate corporate garb. Since J.C. Electrical and Bemar are "one employer" for the purposes of the Act, the collective agreement with J.C. Electrical binds Bemar as well. The section 126 reference asserts that J.C. Electrical - and by implication Bemar -has failed to remit the wages and benefits owing to employees under the terms of that agreement.

3. These matters came on for hearing before the Board on March 27, 1992. The applicant union (on its own behalf and on behalf of the unpaid employees) was represented by counsel. The respondents were not. We shall have more to say about that later.

4. For ease of explanation, it may be useful to record certain provisions of the Labour Relations Act and the Statutory Powers Procedure Act, to which reference will be made below. These are as follows:

Labour Relations Act

1.-(4) Where, in the opinion of the Board, associated or related activities or businesses are carried on, whether or not simultaneously, by or through more than one corporation, individual, firm, syndicate or association or any combination thereof, under common control or direction, the Board may, upon the application of any person, trade union or council of trade unions concerned, treat the corporations, individuals, firms, syndicates or associations or any combination thereof as constituting one employer for the purposes of this Act and grant such relief, by way of declaration or otherwise, as it may deem appropriate.

(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.

126.-(1) Despite the grievance and arbitration provisions in a collective agreement or deemed to be included in a collective agreement under section 45, a party to a collective agreement between an employer or employers’ organization and a trade union or council of trade unions may refer a grievance concerning the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable, to the Board for final and binding determination.

(2) A referral under subsection (1) may be made in writing in the prescribed form by a party at any time after delivery of the written grievance to the other party, and the Board shall appoint a date for and hold a hearing within fourteen days after receipt of the referral and may appoint a labour relations officer to confer with the parties and endeavour to effect a settlement before the hearing.

104.-(13) The Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions, and the Board may, subject to the approval of the Lieutenant Governor in Council, make rules governing its practice and procedure and the exercise of its powers and prescribing such forms as are considered advisable.

(14) The Board may, subject to the approval of the Lieutenant Governor in Council, make rules to expedite proceedings before the Board to which sections 119 to 138 apply, and the rules may provide that, for the purposes of determining the merits of an application for certification to which sections 119 to 121 apply, the Board shall make or cause to be made such examination of records and such other inquiries as it considers necessary, but the Board need not hold a hearing on such an application.

105.-(1) The Board shall exercise the powers and perform the duties that are conferred or imposed upon it by or under this Act.

(2) Without limiting the generality of subsection (1), the Board has power,

(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath, and to produce the documents and things as the Board considers requisite to the full investigation and consideration of matters within its jurisdiction in the same manner as a court of record in civil cases;

(b) to administer oaths and affirmations;

(c) to accept such oral or written evidence as it in its discretion considers proper, whether admissible in a court of law or not;

Statutory Powers Procedures Act

9.-(1) A hearing shall be open to the public except where the tribunal is of the opinion that,

(a) matters involving public security may be disclosed; or

(b) intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public,

in which case the tribunal may hold the hearing concerning any such matters in camera.

(2) A tribunal may make such orders or give such directions at a hearing as it considers necessary for the maintenance of order at the hearing, and, if any person disobeys or fails to comply with any such order or direction, the tribunal or a member thereof may call for the assistance of any peace officer to enforce the order or direction, and every peace officer so called upon shall take such action as is necessary to enforce the order or direction and may use such force as is reasonably required for that purpose.

10. A party to proceedings may at a hearing,

(a) be represented by counsel or an agent;

(b) call and examine witnesses and present his arguments and submissions;

(c) conduct cross-examinations of witnesses at a hearing reasonably required for a full and fair disclosure of the facts in relation to which they have given evidence.

12.-(1) A tribunal may require any person, including a party, by summons,

(a) to give evidence on oath or affirmation at a hearing; and

(b) to produce in evidence at a hearing documents and things specified by the tribunal,

relevant to the subject-matter of the proceedings and admissible at a hearing.

13. Where any person without lawful excuse,

(a) on being duly summoned under section 12 as a witness at a hearing makes default in attending at the hearing; or

(b) being in attendance as a witness at a hearing, refuses to take an oath or to make an affirmation, legally required by the tribunal to be taken or made, or to produce any document or thing in his power or control legally required by the tribunal to be produced by him or to answer any question to which the tribunal may legally require an answer; or

(c) does any other thing that would, if the tribunal had been a court of law having power to commit for contempt, have been contempt of that court,

the tribunal may, of its own motion or on application of a party to the proceedings, state a case to the Divisional Court setting out the facts and that court may, on application on behalf of and in the name of the tribunal or by such party, inquire into the matter and, after hearing any witnesses who may be produced against or on behalf of that person and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of the court.

23.-(1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

(2) A tribunal may reasonably limit further cross-examination of a witness where it is satisfied that the cross-examination of the witness has been sufficient to disclose fully and fairly the facts in relation to which he has given evidence.

(3) A tribunal may exclude from a hearing anyone, other than a barrister and solicitor qualified to practise in Ontario, appearing as an agent on behalf of a party or as an adviser to a witness it it finds that such person is not competent properly to represent or to advise the party or witness or does not understand and comply at the hearing with the duties and responsibilities of an advocate or adviser.

II

5. At the opening of the hearing and throughout the opening submissions, the respondents' representatives insisted upon maintaining a tape-recorder in continuous operation and using a hand-held video camera which periodically swept the room (i.e. the podium, counsel table and public area). We mention "continuous operation" because the respondents' representatives insisted that they had the right to tape-record everything from the moment they entered the building - that is, the Board proceedings themselves, anything said during breaks or lunch periods, conversations with a Board Officer or union counsel in connection with simplifying or settling the dispute, and so on.

6. Counsel for the union urged the Board to restrict or prohibit this activity which she described as intrusive and disruptive. Indeed, certain individuals in the public area vociferously objected to their presence being recorded on video tape; and that objection led to a brief physical altercation when the respondents' representative (Mr. Ryan) indicated that he intended to videotape whatever and whenever he wanted. Similarly, the union's advisors at the counsel table objected to the video tape recording of their presence.

7. Mr. Ryan replied that since the Board's proceedings were "public", he had a right to record and video-tape everything that occurred in connection with the hearing. He submitted that a video tape recording would assist in identifying witnesses, and help ascertain who was speaking (counsel, witnesses, Board members) if the tape-recording was later used to make a written transcript of the proceedings.

8. With respect to the tape-recording, the Board ruled, as it has done in the past, that any party was entitled to retain the services of a court reporter to make a transcript of the proceedings and, by implication, any party was likewise entitled to use an electronic recording device to assist it in taking notes. So long as the use of a tape-recorder did not interfere with the proceedings, no objection could be taken to it. The Board noted, however, that such recording made by one party to the case is not an "official" Record of the Board's proceeding, nor would any transcript made from one party's recording be a part of the Board's Record. Obviously, the Board has no control over what will be recorded or when, whether any resulting transcript will be complete or fragmentary, and whether the tapes have been, or could be, tampered with.

9. With this caveat, though, the Board saw no reason why it should not permit the respondents' representatives to use a tape-recorder. If the union, its counsel, its advisors, or the employees it represents, are discomfited by the fact that their conversations might be surreptitiously tape-recorded during breaks, or in the halls, they can simply conduct themselves in light of that possibility. Those are not matters with which the Board need be concerned.

10. The use of the hand-held video camera raises different considerations, which ultimately prompted the Board to decide that it should not be permitted.

11. The Board noted that these three related applications include an application for certification in which the union sought to represent a group of employees said to be employed by Bemar Construction. We mention this specifically because certification applications are always sensitive matters from an employee's point of view - a fact that the Legislature has recognized in section 113 [formerly 111] of the Act regarding the confidentiality of records that may disclose whether or not an individual is a trade union supporter. The statute provides that such information is confidential and must not be disclosed. Thus, the "privacy interest" asserted by the union finds at least an echo in the statute. The statute recognizes that employees may be legitimately sensitive, and legitimately apprehensive, about the means by which their employer may discover whether or not they support the union; and, as we have already noted, at least one individual sitting watching the proceedings has strongly objected to being video-taped. Of course, the "right" to video-tape may not depend upon the nature of the proceedings, but the circumstances graphically illustrated why the use of the video camera could be distracting and disruptive.

12. There is no indication or undertaking from the respondents' representatives about who will be video-taped, or when, or for what purpose. Nor are we confident that any such undertaking would be adhered to. The only reason for the video tape was that mentioned above (i.e., to identify who was speaking) and Mr. Ryan's assertion that he had a "right" to video-tape the proceedings because his company was a party and the hearing was "public".

13. The Board is not a domestic tribunal, but rather a statutory one to which the Statutory Powers Procedure Act applies; however, the Statutory Powers Procedure Act does not deal with this matter. Section 9(1) contemplates that hearings will be public unless there are unusual circumstances not here present. Section 9(2) empowers the Board to make ancillary orders to maintain order at the hearing. Section 23 provides further powers to control its proceedings and prevent an abuse of process. The Statutory Powers Procedure Act does not require a transcript, and contemplates that tribunals may proceed (as this Board does) without such formality. The Labour Relations Act does not require a transcript either. Finally, section 104(13) of the Act empowers the Board to determine its own practice and procedure (see supra), but leaves it to the Board to work out what that requires in a particular case if the issue is not governed by the rules (as this one is not). Nowhere does either statute contemplate one party video-taping the proceedings (and the other parties), and, of course, the hearing rooms are not equipped to accomplish that task in a neutral and unobtrusive manner.

14. That is the statutory framework within which the Board operates and, as will be seen, it does not address the issue of a party using a portable video camera in the hearing room for such purposes as that party considers appropriate. The respondents were not able to draw our attention to any other Court or tribunal - or any decision by any Court or tribunal - where this is permitted or which would assist us; and, we are unaware of any such decision, or of any Court or tribunal which permits a party to the proceedings to use a video camera in this way.

15. After weighing the parties' positions and representations, the Board was not persuaded that the balance of interests (including the privacy interests of the union's witnesses, advisors and supporters, the distraction caused by the camera, and the respondents' articulated need for it) supported the respondents' request. The use of the video camera was intrusive, interfered with the orderly conduct of the hearing, and was neither required by the relevant statutes nor necessary for a fair hearing under those statutes. We were not prepared, therefore, to permit the use of a video camera in the Board's hearing room during the proceedings. The Board directed that Mr. Ryan (or his associate) stop video-taping, and put the video tape recorder on the floor.

III

16. Immediately following the Board's ruling on the use of the video camera, Mr. Ryan requested an adjournment so that he could take legal advice and launch an "appeal" of the Board's ruling prohibiting him from using his hand-held video camera. Mr. Ryan argued that he was entitled to seek legal advice in light of the Board's ruling. He maintained that there were cases or "law" which contradicted that ruling - even though he could not be more specific than that. The union resisted any adjournment. The union argued that an adjournment would merely delay these proceedings, and prejudice the rights which it is seeking to assert, and which, the statute contemplates should be dealt with as expeditiously as possible.

17. The Board denied Mr. Ryan's request for an adjournment.

18. These proceedings have been scheduled for some weeks, and the respondents have had ample opportunity to retain and instruct counsel. They chose not to do so. The notices of hearing specifically advise that the parties appearing must be prepared to address all issues raised on these applications; and, whether or not the respondents knew that its use of a video camera would be controversial, they were obliged to be ready to deal with that issue when called upon to do so. There is no basis for granting an adjournment to permit Mr. Ryan to search out cases which, he says, would support his position, nor, in the circumstances, is an adjournment warranted so that he can take legal advice or explore the possibility of an "appeal" of the Board's ruling.

19. It is now well established that "time is of the essence" in certification matters - especially in the construction industry where commercial activity and employment opportunities are transitory. In the words of Estey, C.J.O. (as he then was), the "overriding principle invariably applied, is that labour relations delayed are labour relations defeated and denied" (see Journal Publishing Company of Ottawa Limited v. Ottawa Newspaper Guild, et al, [unreported March 31, 1977, Ontario Court of Appeal]. In Hotel and Restaurant Employees et al v. Nick Masney Hotels Limited, (1970) 70 CLLC ¶14020, Laskin, J.A. put it this way:

"The Ontario Labour Relations Board deals in certification matters with fluid situations which cannot be judged by the more leisurely standards that operate in the prosecution of a claim for damages for a tort or for a breach of contract, where the situation is fairly well frozen when the tort or the breach of contract has occurred. Expedition is important to the union, to the employees, and to an employer, and certification is merely the first step of a laborious collective bargaining process".

This proceeding involves a certification application, as well as an application under section 126 of the Act; moreover, the Legislature has itself indicated the need for expedition in section 126 proceedings by prescribing that the Board must hold a hearing within fourteen days of the filing of such applications.

20. Finally, as the Court of Appeal observed in Cedarvale Tree Services v. Labourers' International Union of North America, 1971 CanLII 341 (ON CA), [1971] 3 O.R. 832 (and the Board mentioned at the hearing):

"a tribunal is not required to bring its proceedings to a halt merely because it has been served with a notice of motion for an order of certiorari or prohibition. It is entitled, if it thinks fit, to carry its pending proceedings forward until such time as an order of the Court has actually been made prohibiting its further activity, or quashing some order already made by which it assumed jurisdiction".

It follows, we think, that the Board is not required to grant an adjournment, bringing its proceedings to a halt, merely because a litigant is unhappy with a particular procedural ruling and wants the opportunity to seek legal advice - particularly where, as here, that litigant had ample opportunity to have counsel present in the first place.

21. There was no basis for an adjournment, and no reason why the Board should not proceed to hear these matters; and in this regard, the Board reminded both of the respondents about the evidentiary onus cast upon them by section 1(5) of the Act. That section specifically requires the respondents to adduce the "commercial facts" relevant to the application.

IV

22. Following this ruling, there was a further interchange between the parties about the appropriate order of proceeding. The Board ruled that it would proceed first with the section 1(4) application, since the identity of the employer for labour relations purposes was an integral aspect of the other two proceedings. If, as the union claims, the two corporate respondents should be treated as "one employer" for labour relations purposes, that may be dispositive of the certification application. It is also relevant to questions of liability, under the collective agreement upon which the 126 referral is based. It seemed sensible to proceed with the section 1(4) issues first, and the Board so ruled.

V

23. The Board then turned to the various complaints which the respondents' representatives raised about revealing or producing the commercial documents respecting their business relationship. The union contended they were relevant to the 1(4) application and the union had subpoenaed them (i.e., moved to compel their production in addition to and quite apart from section 1(5)). The respondents' representatives advised the Board that they had with them at least some of the documents to which the subpoenas related, but they refused to produce them and objected to any advance disclosure. They also objected to producing the material mentioned in a summons which had been served upon the respondents.

24. In the result, the Board decided that it was unnecessary, at this stage, to rule on the propriety or scope of the subpoena. The Board directed that Mr. Calderon produce those documents which he had with him, which he indicated he was prepared to produce eventually (because he intended to rely on them) and which he was obliged to produce pursuant to section 1(5) of the Act in any event.

25. Following that ruling, Mr. Ryan undertook to produce the documents which he had with him. Then he refused to reveal them prior to their formal introduction in evidence. Then he provided union counsel with a copy of this material. Then, he crossed the hearing room and snatched them back from the counsel table.

26. However, despite this interruption, Mr. Calderon did agree to produce his documents; and since he was content to proceed first and lead his evidence on the relationship between the respondents, the hearing on the merits of the section 1(4) application eventually got underway. But by that time half a day had been devoted to procedural wrangling.

27. Since the case is scheduled to continue over several more days, it may be useful to make some further comments.

VI

28. The Board wishes to make it clear (as it did at the hearing) that the respondents are obliged to comply with the evidentiary onus cast upon them under section 1(5) of the Act, and, in addition, the Board has the authority under both section 105 of the Labour Relations Act and the Statutory Powers Procedure Act to direct that any documents, which are arguably relevant, must be produced. At this stage, we do not think that it is necessary to address the scope of the subpoena served upon the respondents' official, or the quality of that service, or whether "privilege" of some sort can be claimed in respect of such documents, or even whether such documents are arguably relevant and must therefore be produced whether or not particular weight is eventually assigned to them. It is sufficient to direct, as we do, that all parties list and produce all documents within their direction, care or control or to which they have access, and upon which they intend to rely. Such documents must be produced to the party opposite not less than 10 days prior to the date upon which this hearing is scheduled to re-convene, that is, no later than June 12, 1992.

29. In our opinion, such pre-hearing disclosure is essential to the expeditious resolution of the matters before us. Insofar as possible, the parties should not be caught by surprise or put at a disadvantage by the unforeseen production of unfamiliar documents. Nor should either party be able to secure a tactical advantage or delay by withholding relevant material. As we have already mentioned, proceedings of the kind now before us should be dealt with as expeditiously as possible, and while resource constraints inevitably pose limits upon how quickly the Board can respond to any particular application, the Board has a responsibility to ensure that the hearing time is used productively.

30. It is worth repeating that the scheme of the Act itself envisages that construction industry representation cases, and construction industry arbitration proceedings, will be dealt with expeditiously. There are policy and historical reasons for that. In the absence of an effective means to resolve representation questions, or secure redress for non-compliance with a collective agreement, unions would be tempted to resort to strikes and picketing to force employers to comply with their legal obligations. That was, in fact, a common union response not so many years ago, when the statute lacked an effective legal mechanism to resolve these problems, and employers could both create and delay to defeat legitimate claims. If legal channels are frustrated, for whatever reason, parties will be tempted to resort to self help; and it is that reality which promoted the Legislature to design a system which is supposed to provide expeditious avenues for relief.

VII

31. It is also appropriate to make some comment about the standards of decorum to which parties appearing before the Board must adhere - whether or not they are represented by counsel.

32. Proceedings before the Board are designed to be less formal than those in a Court. Parties are entitled, but not specifically required, to be represented by counsel; moreover, one cannot expect a layman to conduct himself like a lawyer or to appreciate fine points of procedure. On the other hand, a layman cannot be permitted to secure an unfair advantage, create prejudicial delay, or otherwise frustrate the proceedings, simply because he is unfamiliar with his legal rights, (or claims to be) or he is disinclined to abide by the Board's rulings. An unrepresented litigant is entitled to a fair hearing, but he is not entitled to be argumentative, disrespectful, interrupt the Board or counsel opposite, or otherwise behave in a manner inconsistent with the orderly conduct of a Board proceeding. That is why section 9(2) of the Statutory Powers Procedure Act (as well as section 104 of the Labour Relations Act) gives the Board the authority to regulate the conduct of parties in proceedings before it, and that is why the Board has the power under section 23(3) of the Statutory Powers Procedure Act to exclude from the hearing anyone other than counsel.

33. We observe, parenthetically, that the respondents in this matter are corporations, not the individuals who control, or here represent them; and, it is interesting to note that if this were a Court, a corporation would have to be represented by a solicitor, except with leave of the Court (see: Rule 15.01(2) of the Rules of Civil Procedure). Mr. Ryan and Mr. Calderone could not appear as agent as of right, and they have no such absolute right in this forum either. This is not to say that the civil rules apply in proceedings before the Board, or that the Board must always respond in the way that a Court would. But when sections 10(a), 23(1) and 23(3) of the Statutory Powers Procedure Act are read together, it appears that a corporate respondent does not have an absolute right to be represented by the agent of its choice (not being a solicitor), regardless of how that agent conducts himself. Under the Statutory Powers Procedure Act and the Labour Relations Act, the Board has the power to deal directly with contempt or other inappropriate conduct in the face of the tribunal.

34. The respondents must also understand that a hearing before the Board is not an argument. The Board is not required to engage in debate, or explain the law to them step by step, or explain the nature of the legal arguments made by the trade union, or which might be open to them. Indeed, it would be quite inappropriate for the Board to give legal advice, or to explain the arguments which the respondents might make, or to outline the options available to them, or the legal consequences or contingencies involved in these proceedings. Those are matters that the respondents should pursue with a solicitor; and the Board here repeats the recommendation made repeatedly at the hearing, that the respondents discuss their concerns with a lawyer experienced in labour relations law.

35. They are not required to do so, of course. They are entitled to appear on their own, tender evidence which is relevant (but not irrelevant evidence) and respond to the legal issues which arise in these matters (which they may or may not be able to independently identify or adequately address). But they are not entitled to pursue irrelevancies, make speeches, interrupt or make pejorative remarks to counsel opposite, or address argument to issues not crystallized in the case before us. Nor does a party's "right to be heard" or "right to have his day in court" oblige the Board to hear witnesses simply because such party asserts that, in its opinion, the witness is someone that the Board ought to hear from or it proposes to call. The witnesses' evidence must be directed to a factual or legal issue in dispute, and have arguable probative value.

36. The respondents also run the risk - as the Board advised them at the hearing - that a valid legal point will not be recognized or developed, potentially significant arguments may be missed, and potentially relevant facts (in their favour) may not be established in evidence. It would be unfortunate if the case for the respondents was not adequately put because their representatives' efforts were unfocused or misdirected.

VIII

37. The parties have advised the Board that they anticipate that the first phase of this proceeding (i.e. the "related employer" issue) will take some 12-18 hearing days to complete. It is not at all clear to the Board why so many hearing days would be required, nor is it evident from the parties' pleadings. In the Board's experience, in cases such as this, the "commercial facts" concerning the respondents' business relationship are seldom in dispute, nor is there usually much evidence that is relevant to the exercise of the Board's discretion. And section 1(4) has been part of the statute for almost twenty years, so there is a well-established jurisprudence, affirmed, from time to time, by the Divisional Court.

38. Quite frankly, we find it difficult to discern what evidence could consume that much hearing time; for Mr. Calderon indicated that his evidence "in chief' could probably be completed in one day, and counsel for the union indicated that she did not anticipate an extensive cross-examination because, in her experience, the "commercial facts" were largely incontestable. Be that as it may, and out of an abundance of caution, the Board put on "temporary hold" a further 12 hearing days (which we canvassed with the parties at the hearing) - with the caveat that the parties should advise the Board, as soon as possible, whether this number of hearing days will ultimately be required. In scheduling those continuation days, we are prepared to accommodate the parties' vacation schedules, but we are not prepared to eliminate all Mondays and Fridays as Mr. Ryan requested so that the litigation would accommodate his business meeting schedule. The initial days in the series (having regard to this panel's availability) are: June 22, July 3, July 24 and July 29, 1992.

39. In addition, pursuant to section 1(5) and section 104 (13) of the Labour Relations Act (see supra), the Board directs that the respondents set out, in writing and in detail, all of the facts upon which they intend to rely and which they claim to be relevant to the disposition of the issues in these matters. Such particulars are necessary in order for the Board to properly assess the amount of hearing time that will be necessary, and to ensure that these cases will progress, from start to finish, as expeditiously as possible. Similarly, the union is directed to stipulate all facts upon which it intends to rely and of which it has knowledge (bearing in mind that section 1(5) of the Act recognizes that a trade union will not normally have knowledge of the corporate or business relationships between named respondents). It appears to the Board that these more extensive particulars and pleadings will contribute to the orderly resolution of the matters in dispute. The parties are warned that if they do not fully particularize their positions, in advance of the continuation of hearing, the Board may decline to hear evidence about the "new matters" which they later wish to raise.

40. The Board directs that these full particulars and pleadings be provided by each party to the other (with a copy to the Board) within 10 days of the hearing - that is, no later than June 12, 1992 (which will give the parties more than a month to prepare them). Each party is also directed to advise the Board, in writing, of its estimate of the total number of witnesses it intends to call and the total number of hearing days that, in its estimation, are likely to be necessary. Upon receipt of that material, the Board will select from among the hearing days put "on hold" (and already canvassed with the parties at the hearing) such days as appear to be necessary to complete these matters.

41. In addition, if further dates become available because other cases in which this panel is involved either settle or finish earlier than anticipated, the parties may be so advised. As we have already mentioned, it is important to try to complete these matters in a timely fashion; and while there are obvious resource limitations, the parties and the Board must make the best use of the hearing time available.