Carpenters and Allied Workers Local 27 United Brotherhood of Carpenters and Joiners of America v. Highland York Flooring Company Limited and Highland York Interiors Inc.

[1993] OLRB Rep. July 607

0888-93-R; 1142-93-M Carpenters and Allied Workers Local 27 United Brotherhood of Carpenters and Joiners of America, Applicant v. Highland York Flooring Company Limited and Highland York Interiors Inc., Responding Parties

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members J. A. Rundle and I. Redshaw.

DECISION OF THE BOARD; July 15, 1993

1. Board File No. 0888-93-R is an application, made on June 11, 1993, under sections 1(4) and 64 of the Labour Relations Act. In it, the applicant trade union seeks a declaration that the responding employers carry on associated or related activities under common control or direction (and presumably that they therefore constitute one employer for purposes of the Act), a declaration that there has been a sale of a business from one responding employer to the other, and other ancillary relief.

2. Board File No. 1142-93-M is an application, made on July 5, 1993, for an interim order under section 92.1 of the Act. More specifically the applicant requests the following interim orders:

3. The Respondents produce (at least seven calendar days prior to the hearing) to the Applicant and to the Board all documents pertaining to the corporate and business structure of Highland York Interiors Inc. and Highland York Flooring Company Ltd. Without limiting the generality of the foregoing, all Corporate Minutes, By-Laws, Articles of Incorporation, Directors, Resolutions, Shareholder Resolutions, Shareholder Agreements, Directors Registers, Shareholders Registers, Officers Registers, Share Transfer Registers, Share Certificates, filings with the Minister of Consumer and Commercial Relations pursuant to the Corporation Information Act, and any other agreements or notes reflecting agreements between any of the Shareholders, Officers or Directors of the Responding Parties.

4. The Respondents produce (at least seven calendar days prior to the hearing) to the Applicant and the Board all documents pertaining to any commercial transactions between Highland York Co. Ltd. and Highland York Interiors Inc. Without limiting the generality of the foregoing, all agreements, purchase orders, contacts, [sic] sub-contracts, leases, securities, guarantees between the Responding Parties and all agreements, contracts, subcontracts, leases, and guarantees entered into jointly by the Responding Parties.

5. The Respondents produce (at lease [sic] seven calendar days prior to the hearing) any documents indicating a disposition by an [sic] mode whatsoever of the business, assets, goods, receivables, leases, equipment of Highland York flooring Co. Ltd. to Highland York Interiors Inc.

6. The Respondents to provide a list of the following:

(a) premises owned, leased or occupied;

(b) equipment owned, leased or used;

(c) employees current and for last five years;

(d) business cards (a copy);

(e) name of accountant and bookkeeper;

(f) name of solicitor;

(g) customer list;

(h) phone and fax numbers used;

(i) all persons with authority to sign cheques;

(j) all signs indicating associated existence; and

(k) shares office equipment, sales personnel or employees

5. The Respondents to produce within seven calendar days of the hearing all documents not covered by paragraphs 1 through 4 which the Respondents intend to rely on at the hearing of this matter.

6. The application in Board File No. 1142-93-M was served on Highland York Interiors Inc. ("Interiors") July 2, 1993 and on Highland York flooring Company Ltd. ("flooring") on June 30, 1993. Neither responding employer has filed any response to the applicant's request for the interim orders it seeks, either within the time specified therefor in the Board's Rules of Procedure or otherwise. Both Interiors and Flooring have filed responses to the application in Board File No. 0888-93-R. Both responses appear to have been completed and signed by the same individual. The response filed by Interiors contains a blanket denial of the applicant's statements and nothing more. Flooring's response says nothing more than that it is "insolvent".

7. Section 104(13) of the Labour Relations Act empowers the Board to determine its own practice and procedure. Section 105(2)(a.1) empowers the Board to compel "any party to produce documents or things that may be relevant to a matter before it ... before or during a hearing." Most, if not all, cases benefit from pre-hearing disclosure of relevant documents.

8. Section 1(4) and 64 of the Labour Relations Act deal with the labour relations ramifications of business relationships or transactions. Both operate to modify common-law notions of separation between corporate or other entities, and about privity of contract. Preliminary disclosure is particularly helpful in cases of this type because they often turn on an assessment of commercial facts which are not often significantly in dispute. Detailed pleadings and pre-hearing disclosure permit the parties to identify and join issue on the factual and legal issues between them, and allows them to assess the respective positions. It also permits an assessment of the hearing time which may be necessary to deal with the matter and allows for more efficient case management by both the Board and the parties.

9. In addition to the provisions of the Labour Relations Act referred to above, section 1(5) and 64(13) of the Act provide that:

1(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.

64(13) Where, on an application under this section, a trade union alleges that the sale of a business has occurred, the respondents to the application shall adduce at the hearing all facts within their knowledge that are material to the allegation.

7. The documents and information which the applicant requests the responding parties be ordered to produce in this case are the kind of documents and information which are generally relevant in proceedings under sections 1(4) and 64. Further, production or disclosure of such documents or information in this case would serve to flesh out the material facts, identify the issues, and permit the application to proceed and be disposed of more efficiently and expeditiously. The responding parties have said little of substance in the responses they have filed to the main application, and have made no response to the applicant's request for the production order it seeks.

8. The Board sees no reason not to grant the orders requested. The Board therefore orders the responding parties to produce to the applicant, at least 7 calendar days prior to the first hearing day scheduled for this application, all the documents and information specified by the applicant as listed in paragraph 2, above. Any documents or information produced in response to this order are not to be used for purposes unrelated to this proceeding.

9. The Board wishes to note that it is not necessary to file an application for an interim order under section 92.1 of the Act to obtain the kind of production order the Board has made herein. Although the words of section 92.1 are broad enough to include this kind of request, it is sufficient and probably more efficient to make such a request in the "main" proceeding, provided that such a request is made in writing and with the proper specificity and particularity, including representations with respect to why the production order being requested is appropriate.