Ontario Labour Relations Board

[1992] OLRB Rep. October 1068

0944-92-G Bricklayers, Masons Independent Union of Canada. Local 1, Applicant v. Crestview Masonry Co. Ltd. Respondent

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members W. N. Fraser and C. A. Balleni'ine.

APPEARANCES: Mark Lewis and J. Meiorin for the applicant; no one appearing for the respon­dent.

DECISION OF THE BOARD; October 9, 1992

1. This is a referral of a construction industry grievance to arbitration under section 126 of the Labour Relations Act ("the Act").

2. It has the following history:

(a) The matter was originally listed for hearing on July 10, 1992 at which time the parties agreed to adjourn until August 10, 1992. The agree­ment to adjourn contemplated a meeting' at the respondent's accoun­tants on July 15, 1992 when the union would have the opportunity to review and copy documents it had subpoenaed by way of subpoena duces tecum, on Guiseppe (Joe) Cavuoti but which had not been pro­duced. See the Board's decision dated July 10, 1992.

(b) On August 10, 1992 Mr. Cavuoti was once again summonsed with a subpoena duces tecum. He did not appear nor did anyone on his behalf. Nor were the documents produced to the union. A warrant for Mr. Cavuoti's arrest was issued, the Board (differently consti­tuted in part) having satisfied itself that he had been duly served with the subpoena and that his presence was necessary to the grievance and the ends of justice. He was ordered arrested and brought before the Board on September 8, 1992. See the Board's decision dated August 10, 1992.

(c) On September 8, 1992 Mr. Cavuoti was brought to the Board hear­ing pursuant to the above Warrant for his Arrest. He had not brought the documents necessary to the case. It was agreed that the hearing should be adjourned to September 15, 1992. Mr. Cavuoti agreed to produce the documents which had been subpoenaed. The Board directed him to produce the documents to the union by Sep­tember 11 and to appear on September 15, 1992. The Board warned Mr. Cavuoti of the possible consequences of failing to appear or comply with the Board's directions.

(d) On September 15, 1992 Mr. Cavuoti failed to appear at the Board's hearing. The Board was advised by union counsel that Mr. Cavuoti had promised to produce the documents on September 11 and 14, 1992 and had not done so.

3. At the hearing on September 15, 1992 union counsel asked the Board to cite Mr. Cavuoti for contempt and to have him arrested and held in police custody until such time as he produces or arranges to have produced to the union the subpoenaed documents. The union reserved the right to argue that costs be awarded against Mr. Cavuoti when the matter proceeds on its merits.

4. At that point it appeared to the Board that Mr. Cavuoti was clearly in contempt of the Board's directions of September 8 to provide the subpoenaed documents by September 11 and to appear on September 15. We were considering the penalty suggested by union counsel.

5. Subsequent to the September 15 hearing and before our decision had issued, union counsel quite properly contacted the Board to inform us that "at some point in the afternoon of Tuesday, September 15, 1992, certain documents were delivered to the union, allegedly dealing with the respondent's payroll." Union counsel submitted that the documents were incomplete and urged the Board to treat Mr. Cavuoti as having failed once again to comply with the Board's direc­tions. However, the delivery of these records to the union may amount to partial compliance with the Board's directives as to production of records.

6. We have carefully considered how to deal with the circumstances outlined above. It is abundantly clear that Mr. Cavuoti failed to appear on September 15, 1990. We will deal with that aspect of the facts by issuing a Warrant for his Arrest for the next date of hearing. See Casalbil Contractor Limited, [19801 OLRB Rep. Sept. 1278. We are satisfied from the Board's decision of September 8, 1992 that Mr. Cavuoti was orally personally directed by the Board to appear on Sep­tember 15, 1992. Further, that decision was mailed to him. We are further satisfied from the Board's decision of August 10 and September 8, 1992 that his presence as a witness is necessary and material to the ends of justice herein.

7. The Board therefore finds it appropriate to issue a Warrant for the arrest of Joe Cavuoti directing that he be arrested and brought before the Board for the hearing of this grievance at 9:30 a.m. on December 18, 1992, at the Board's hearing rooms on the 6th Floor of 400 University Ave­nue in the City of Toronto. The Warrant should require that Joe Cavuoti bring with him the docu­ments originally summonsed, that is, originals or copies of all payroll records, including time sheets, computerized payroll records and pay stubs, of all employees of the respondent for the time period commencing January 1, 1991 and originals or copies of all employer contribution reports in respect of members of the applicant completed and filed by the respondent from and after January 1, 1991, which are in his possession or power when he is arrested.

8. As noted above, the delivery of some records to the union may amount to partial com­pliance with the Board's directives as to production of records. In all the circumstances, the Board considers it appropriate to give notice that the parties will have a further opportunity to address the characterization of Mr. Cavuoti's previous failure to comply with the Board's directives and any penalty therefor at the next day of hearing. This will also serve as notice that if Mr. Cavuoti fails to provide the summonsed records at the next day of hearing, he may be cited for contempt in the face of the tribunal, and the parties may address that issue, and any penalty therefor, should it arise at that time. See in general on the topic of contempt before administrative tribunals Re. Hawkins and Halifax County Residential Tenancies Board, 1974 CanLII 1372 (NS SC), 47 D.L.R. (3d) 117, Re. Diamond and OMB, (1962), 1962 CanLII 132 (ON CA), 32 D.L.R. (2d) 103, [1962] O.R. 328, and most recently, Chrysler Canada Ltd. v. Canada(Competition Tribunal), a decision of the Supreme Court of Canada dated June 25, 1992, File Nos. 22151 and 22152, as yet unreported.

9. In order to determine to what extent Mr. Cavuoti continues to be in contempt of the Board's directives to produce the documents summonsed, we hereby direct the union to set out in detail what has been provided by Mr. Cavuoti and what documents are still necessary to prove its case and file that with the Board, with a copy to Mr. Cavuoti, within seven days of the receipt of this decision. Mr. Cavuoti is directed to produce copies of the remaining documents to the union forthwith and to bring the documents to the next date of hearing, unless otherwise agreed by the parties.

10. In order to assist the parties with the possible settlement of this matter we hereby authorize a Labour Relations Officer to confer with the parties and to do a check of the respon­dent's records if necessary.

11. We would like to make it very clear to Mr. Cavuoti that he must comply with the Board's directives. He may face fine or imprisonment if he does not. See Rino Zanette (1981) Ltd., [1986] OLRB Rep. Nov. 1572. Because of his failures to appear and comply with other Board directives, it has not as yet been possible to ascertain what the grievance itself involves. By failing to cooperate, Mr. Cavuoti risks making the matter much more serious than any potential liability from the grievance itself. We cannot emphasize too strongly that Mr. Cavuoti should discuss this matter with the Labour Relations Officer and the union, see if the matter can be resolved, and comply with the Board's directives. He has the right to have a lawyer to assist him, although he is not obliged to do so.

12. To summarize, the Board directs as follows:

(1) The union is to inform the Board and Mr. Cavuoti within seven days of the material outstanding from the summons served on him for the August 10, 1992 hearing date.

(2) Guiseppe (Joe) Cavuoti is required to produce copies of the docu­ments required in the original summons issued to him for the hearing of August 10,1992 and continued by Board directives to him on Sep­tember 8, 1992 to the union forthwith after receiving notice from the union of those documents it still requires.

(3) Mr. Cavuoti is directed to discuss this matter with a Labour Rela­tions Officer and to attempt to resolve the matter.

(4) Mr. Cavuoti is directed to appear at the Board on December 18, 1992 at 9:30 a.m. and to bring all the documents summonsed with him unless otherwise agreed between the parties. Because of his fail­ure to appear on August 10 and September 15, a warrant for his arrest will be issued as attached.

(5) The purpose of the hearing on December 18, 1992 is to consider the following issues, as and if still necessary:

a) the merits of the grievance referred for arbitration by the union;

b) whether Mr. Cavuoti's past failures to comply with the Board's directives should be characterized as contempt and if so, with what penalty;

c) if Mr. Cavuoti fails to produce the documents on December 18, 1992, whether this constitutes contempt, and if so, with what pen­alty.

13. Being so advised by the applicant, the Board notes that Guiseppe (Joe) Cavuoti's home address is 365 Hillmount Avenue, Toronto, Ontario (from where the respondent also apparently carries on business). He is said to be approximately 5 feet 8 inches tall, of medium build, 45 to 50 years old, and with dark but graying hair. He is clean shaven with no apparent distinguishing marks. His home and business phone number is said to be 782-8270 and his mobile phone number

402-5990.

14. If this matter is resolved between the parties so that the hearing is no longer necessary the parties are directed to notify the Board immediately so that the warrant for Mr. Cavuoti's arrest might be vacated.