Carpenters and Allied Workers Local 27 v. Central Forming & Concrete Inc., 1994 CanLII 9849

[1994] OLRB Rep. July 805

3666-93-R; 3667-93-G; 3857-93-R Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Central Forming & Concrete Inc.; Altracon Construction Limited; Gaspo Construction Limited; Ashworth Engineering Inc.; Responding Parties; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America; United Brotherhood of Carpenters and Joiners of America, Locals 1946 and 785, Appli­cants v. Gaspo Construction Ltd.; Ashworth Engineering Inc.; Altracon Construc­tion Ltd., Responding Parties; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Central Forming & Concrete Inc.; Altracon Construction Limited; Gaspo Construction Limited; Pamina Construction Inc., Responding Parties

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.

APPEARANCES: David McKee, John Teffer and John Gross on behalf of the Carpenters and Allied Workers; Geoffrey Thomas on behalf of Ashworth Engineering Inc. and Pamina Construc­tion Inc.; Gabe Spoletini on behalf of Gaspo Construction Limited; Paul Lameui on behalf of Altracon Construction Limited.

DECISION OF THE BOARD; July 18, 1994

1. Board Files 3666-93-R and 3857-93-R are applications under section 64 and subsection 1(4) of the Labour Relations Act ("the Act"). In these applications the applicant asserts in the alternative that (a) one or more of the responding parties is a “successor employer" as a "sale" of a "business" within the meaning of section 64 of the Act has taken place by or from one or more of the responding parties to another of the responding parties; and/or (b) that the responding parties carry on associated or related businesses or activities under common control or direction and there­fore for purposes of the Act constitute one common employer. Board File 3667-93-G is a referral of a grievance pursuant to section 126 of the Act.

2. For ease of reference the applicant in each of these applications will be referred to as "the Carpenters" or "the union". The responding parties will be referred to as "Central Forming"~ "Altracon", "Gaspo", "Ashworth", and "Pamina".

Procedural Matters

3. These matters first came on for hearing before this panel of the Board on Monday, May 30, 1994. At that time none of the responding parties was represented by legal counsel as each had chosen to act on its own behalf. The appearances referred to above reflect the persons who appeared on behalf of the various corporate entities on that day. As the responding parties were not represented by counsel the Board advised each at the commencement of the hearing that there is no requirement that parties appearing before the Board retain legal counsel. The Board often conducts hearings where one or more parties are not represented by legal counsel. The Board advised the responding parties however that hearings before it were legal proceedings. The Board's function was to adjudicate upon the issues in dispute. The Board therefore could not act as an advocate for, or advisor to, any party merely because that party was not represented by coun­sel. Such conduct would be inconsistent with the Board's role as a neutral adjudicator. As a result, the Board advised all of the responding parties that each must bear the responsibility for the pre­sentation of its case and must bear any risks associated with the decision not to retain counsel and act on their own behalf. The Board did note the procedure typically followed and indicated that if any of the responding parties had any questions with respect to the procedures before the Board we would attempt to answer such questions within the confines of our adjudicative role.

4. The hearing proceeded on May 30, 1994. At that time the Board dealt principally with requests by the various parties concerning the production of documents. In that regard the Board rendered an oral ruling which was subsequently reduced to a written decision of the Board dated June 1, 1994.

5. The hearing resumed on June 8, 1994. We note that on that day Mr. Geoffrey Thomas was not in attendance. Mr. Thomas had been the representative for Ashworth and Pamina. On the first day of hearing (Monday May 30th, 1994) Mr. Thomas had left the hearing part way through as he had urgent business matters to attend to (a monthly draw meeting at 2:00 p.m.). In so doing however he indicated that he had instructed and authorized Mr. Spoletini (the representative for Central Forming and Gaspo) to continue to act as his agent and as a representative for Ashworth and Pamina. The hearing continued on that basis. On June 8, 1994 Mr. Spoletini stated that he was authorized to continue in that representative capacity and that Mr. Thomas would not be in atten­dance that day.

6. On June 8, 1994 counsel for the union sought to put two matters before the Board. One concerned his request that Altracon Construction Company Inc. ("ACCI"), another corporate entity, be added to these proceedings. In the alternative counsel sought to consolidate with these proceedings a fresh application under section 64 and subsection 1(4) of the Act in which that cor­porate entity was named as a responding party. The second matter which counsel for the Carpen­ters sought to raise concerned his assertion that the responding parties had not complied with the order for production made by the Board on May 30, 1994. In the circumstances detailed herein the Board did not on that day deal with the first motion, namely the matter pertaining to the addition of ACCI to these proceedings. Instead, the Board first dealt with the issues surrounding the non-production of documents.

7. The Board heard the submissions of all of the parties with respect to the non-production of documents and the asserted failure by the responding parties Ashworth, Pamina, and Gaspo to comply with the Board's order to produce. After hearing those submissions, on the morning of June 8, 1994, the Board rendered the following oral ruling:

We have considered the submissions of each of the parties with respect to the motion made by counsel for the applicant that the Board first deal with the failure of one or more of the respond­ing parties to comply with the Board's order and direction to produce certain documents. That order and direction was rendered orally by the Board on the first day of hearing in this matter, namely May 30, 1994. That oral ruling was reduced to writing in a decision of the Board dated June 1, 1994. We note that the decision of the Board substantially reflected the agreement that the parties made on the first day of hearing concerning the production of documents. We also ordered the production of certain other documents which production had been opposed by either the applicant or one or more of the responding parties. The documents were ordered to be produced on Monday June 6th, at 10:00 a.m. at the Board's offices, 400 University Avenue, 6th Floor for review by all parties.

It is apparent both from the submissions of the parties and a review of the documents presented by both Mr. Spoletini and Mr. McKee that our order and direction has not been complied with. For example, some documents have not been produced at all. In other instances incomplete copies of documents were produced.

The responding parties have put forth various reasons why these documents were not produced either at all or in their entirety. For example, some of the documents such as the records of employment and timesheets of employees on the 5t. Margarets of the Pines project, Scarbor­ough, are apparently in the possession of an accountant for use in the performance of the accountant's duties. 5ome documents were produced only in part while other parts were omitted because the responding parties (Gaspo and Ashworth) assert that these other parts were simply not relevant consisting as they do for example of pre-printed pages of standard documents, spec­ifications or sub-contracts with respect to work that is clearly not carpentry work such as mechanical work etc. In addition, Ashworth takes the position that documents with respect to certain of these projects are not relevant insofar as the projects involve residential construction (for example the Yellow Brick House project). It is the position of Gaspo, Central Forming, Ashworth and Pamina that whatever bargaining rights the carpenters' union may have with respect to one or more of these corporate entities apply only to construction activities within the industrial, commercial and institutional sector ("Id sector") of the construction industry and do not extend to the residential sector. The Carpenters' dispute that these projects do not involve ICI sector construction and therefore assert that if the construction involves arguably ICI projects the documents are arguably relevant. The carpenters assert that in any event the docu­ments were ordered to be produced, have not been produced and it is not open to the respond­ing parties in the face of the Board's orders to decide to produce only part of the documents ordered produced and not to produce others which they view as irrelevant.

The proceedings before us consist of two applications pursuant to subsection 1(4) and section 64 of the Labour Relations Act, and one referral of a grievance pursuant to section 126 of the Act.

With respect to the section 126 referral of a grievance we note that where a party fails to comply with the Board's orders in such an arbitration proceeding, the Board as arbitrator has the power to fine or commit to prison the recalcitrant party. With respect to the subsection 1(4) and sec­tion 64 applications where a party fails to comply with the Board's orders and directions, the Board, pursuant to section 13 of the Statutory Powers Procedure Act may either on its own motion or that of any party to the proceedings state a case to the Divisional Court that the recal­citrant party be found guilty of contempt. In this regard see for example, Rino Zanette (1981) Ltd., [1986] OLRB Rep. Nov. 1572 and the various cases referred to therein.

We do not consider it necessary at this stage of these proceedings to consider either of these options until we have heard and considered the further submissions of the parties that these matters can be disposed of on the basis of the pleadings filed and the documents which have been produced. In particular we note again that the Labour Relations Act imposes a statutory duty upon the responding parties to adduce all facts within their knowledge that are material to the applications under subsection 1(4) and section 64 of the Act. In these circumstances a failure by any of the responding parties to adduce that material and to comply with the order of pro­duction made by the Board on May 30, 1994 may result in adverse inferences being drawn by the Board that the facts or documents not produced support the applicant's case in much the same way as an adjudicator may draw adverse inferences where available evidence is not ten­dered.

The Board is prepared to proceed to deal with any submissions that any of the parties may wish to make in that regard at 2:00 p.m.

8. After the Board rendered that oral ruling it recessed for lunch for one hour and forty­five minutes to enable the parties to consider their positions. Upon our return counsel for the Car­penters made a motion to the Board that it deal with the matters before it on the basis of the mate-

rial before the Board. With the exception of the addition of certain assertions made by Mr. Spole­tini during the course of his submissions (which assertions counsel for the Carpenters agreed could be considered as additional facts pleaded by the responding parties) both Mr. Lametti on behalf of Altracon, and Mr. Spoletini on behalf of the other responding parties also agreed that the Board could dispose of these matters on the basis of the material then before the Board. The responding parties did not seek to adduce further evidence before the Board.

9. The submissions of each of the parties differed as to how the Board should dispose of these matters. On the basis of the material before the Board counsel for the union submitted that the applications under section 64 and subsection 1(4) of the Act and the relief claimed in those applications should be granted, while the referral of the grievance should be deferred to further hearing as there was insufficient evidence before the Board to decide that matter. On the other hand Mr. Lametti on behalf of Altracon, and Mr. Spoletini on behalf of the other responding par­ties each asserted that all of these matters should be dismissed as there was not sufficient evidence before the Board to support any of the applications.

Submissions of the Parties

10. We turn then to examine the pleadings and evidence and material before the Board and the submissions of the parties. We do so in the context of particular provisions of the Act and the Board's Rules of Procedure.

11. Subsections 1(5) and 64(13) of the Act respectively place a statutory burden upon responding parties to a "common employer" application and a "successor employer" application to adduce evidence. Subsection 1(5) states:

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.

Section 64(13) states:

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.

In addition, we note that sections 14 and 19 of the Board's Rules of Procedure provide:

14. Any response filed with the Board must include the following details:

(a) the full name, address, telephone number and facsimile number (if any) of the responding party, of a contact person for the responding party and of

any other person who may be affected by the application;

(b) a statement of agreement or disagreement with each fact or allegation in the application;

(c) a statement of the responding party's position with respect to the orders or remedies requested by the other parties;

(d) where the responding party relies on a version of the facts different from the applicant's, a detailed statement of all material facts on which the responding party relies, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly.

19. If a party receiving notice of an application does not file a response in the way required by these Rules, he or she may be deemed to have accepted all of the facts stated in the application, and the Board may decide the case upon the material before it without further notice.

[emphasis added]

12. We have before us the pleadings of the parties, the viva voce testimony of Mr. Lametti, such documents as were produced pursuant to our order of May 30, 1994, (including but not lim­ited to a lease agreement between Gaspo and Ashworth and agreements to provide services between Ashworth and Geoffrey Howard Thomas and Ashworth and Gaspo), certain material filed with the Ministry of Consumer and Commercial Relations pursuant to the Corpora tions Infor­mation Act and the Business Corpora fions Acf, a shareholders agreement dated May 15, 1987 amongst, inter alia, Mr. Lametti, Mr. Thomas, Spyder Holdings Limited and Briscan Develop­ments Inc., agreements between the carpenters' union and Altracon, and decisions of the Board involving Gaspo.

13. In addition to this material we have also considered the submissions of the parties and, to the extent noted herein, have drawn some adverse inferences from the failure of some or all of the responding parties to produce the documents directed to be produced or otherwise adduce evi­dence as required by the statute.

Pamina and Ashworth

14. Neither Pamina nor Ashworth filed any response. In the result each may be deemed to have accepted all of the facts stated in the applications. (See section 19 of the Rules). This is partic­ularly appropriate where the statute itself imposes a duty to adduce at the hearing all facts within their knowledge that are material to the allegations made in the applications. (Subsection 1(5) and section 64(13)).

15. Moreover, the material before us supports a declaration that Pamina and Ashworth carry on associated or related activities or businesses under common control or direction.

16. Pamina was incorporated December 23, 1991. The filings made under the Corporations Information Act indicate that its head office address is 2131 Williams Parkway, Unit 17, Brampton, the same address which Gaspo leases to Ashworth. Gina Spoletini, (it is not disputed that she is the spouse of Mr. Spoletini) was one of its first directors upon incorporation. Its most recent filings with the Ministry of Consumer and Commercial Relations indicate that Geoffrey H. Thomas is a director of Pamina having been first elected on November 20, 1992. The same Geoffrey H. Thomas is also the first and only director of Ashworth a corporation incorporated on September 17, 1992. In the absence of any contrary pleading or evidence, these facts are sufficient to establish common control or direction.

17. In addition, in the absence of any contrary pleading or evidence we have deemed both Pamina and Ashworth to have accepted those facts stated in the application which support the finding that each corporate entity carries on business in the construction industry. Pamina has recently commenced a construction project at St. Margarets of the Pines, Scarborough as a general contractor. Ashworth has been engaged as a general contractor at various construction projects at Park Street Collegiate in Orillia, the University of Western Ontario in London, Canadian Forces Base Borden, and the Ambulance Station, Shelbourne, Ontario.

Gaspo and Central Forming

18. Gaspo and Central Forming filed responses with the Board. The responses were filed in February 1994 by counsel then acting for these responding parties. By letter to the Board dated March 16, 1994 that counsel advised that he no longer acted for Gaspo or Central Forming.

19. During the course of the hearing Mr. Spoletini indicated to the Board that the respon­ses filed were not accurate and/or did not reflect his instructions to counsel. He noted that as a result this counsel had been reported by him to the Law Society of Upper Canada. At various times during the hearing Mr. Spoletini emphasized that he did not agree with or adopt the respon­ses and requested the Board to take into account the fact that he had made a complaint to the Law Society of Upper Canada with respect to his representation by counsel.

20. The pleadings filed, the documents and evidence produced by the various parties and the submissions of the parties however remain the only material before this Board upon which we can determine this matter. In particular, Mr. Spoletini did not seek to put further or other material or evidence before the Board. With the exception of factual statements made by him during the course of his submissions (which statements we have accepted as his evidence and/or pleadings in these matters) there is nothing before us which is inconsistent with the responses filed on behalf of Gaspo and Central Forming. Although counsel ceased to act in or about March 16, 1994, neither Central Forming nor Gaspo filed new or amended responses. Neither retained new counsel to act on their behalf. At no time during the course of the hearing did Mr. Spoletini specify in what respect the responses filed were inaccurate or incomplete. Evidence to support or otherwise con­firm Mr. Spoletini's assertions with respect to the purported inaccuracy or incompleteness of the responses was simply not tendered.

21. In the result, on the basis of the material and evidence before us we find the following.

22. Central Forming is an Ontario Corporation which carried on business throughout the 1980's. On August 30th, 1983 it entered into a voluntary recognition agreement binding it to the Carpenters' Provincial Collective Agreement as between the Carpenters' Employer Bargaining Agency and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America (the "carpenters' provincial collective agreement").

23. Gaspo became active at around the same time that Central Forming ceased to do busi­ness. Both Gaspo and Central Forming are controlled by Gabriel Spoletini. The most recent filings under the Corporations Information Act list Ginevra Spoletini as an officer and director of Gaspo, having held those positions since June 25, 1991. Ms. Spoletini's address is the same address as that of Gina Spoletini, a Director of Pamina.

24. On July 23, 1992 Gaspo and Central Forming agreed that they were related employers within the meaning of subsection 1(4) of the Act and executed a voluntary recognition agreement.

25. On February 19, 1993 the Ontario Labour Relations Board found Gaspo to be in viola­tion of the carpenters' provincial collective agreement and assessed damages in the amount of $2,200.00 and ordered that amount to be paid together with an amount of $286.51 to Manion Wil­kins with respect to benefits owing to a named employee. On May 12, 1993 the Board found Gaspo to be in violation of the carpenters' provincial collective agreement and assessed damages of $10,719.66.

26. On April 30, 1993 Gaspo filed with the trustees of the benefit plans referred to in the carpenters' provincial collective agreement a "dormant" report indicating that it had ceased to employ members of the Carpenters' union pursuant to the provisions of the carpenters' provincial collective agreement.

27. By a commercial lease dated December 1, 1992 Ashworth agreed to lease from Gaspo the upper floor of 2131 Williams Parkway, Brampton. That lease was for a term of six months with a three year option. That address is also the business address of Gaspo. The terms of the lease specify that Ashworth will use the leased premises only for the business of "general constructing".

28. Two separate but virtually identical agreements were produced by Gaspo and Ash-worth. Each is dated April 1, 1993. The first agreement is between Ashworth and Geoffrey How­ard Thomas and contains the following terms:

WHEREAS ASHWORTH is a company carrying on the business of Engineering and General Contracting, in the Province of Ontario.

AND WHEREAS ASHWORTH wishes to employ the consulting services of GEOFF in order to manage and supervise the day to day operations of ASHWORTH.

AND WHEREAS GEOFF represents that he is possessed of the necessary experience and knowledge required to manage, supervise and give consultation to ASHWORTH.

NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of other good and valuable consideration and the sum of TWO ($2.00) Dollars (receipt and sufficiency whereof is hereby acknowledged), the parties hereto hereby convenant and agree to and with each other as follows:

1. That the foregoing recitals are true in substance and in fact.

2. GEOFF has agreed to manage, consult, supervise and supply any and all services of a mana­gerial, consulting and supervisory nature in connection therewith.

3. The period of employment shall commence on April 1st, 1993 and shall cease one (1) year threeafter, [sic] namely, March 3 1st, 1994.

During his period of employment, shall diligently exert himself in the performance of the duties and functions as are usually required by and incidental. [sic]

4. In consideration of the services so rendered by GEOFF during the period of employment, ASHWORTH agrees to pay GEOFF a fee of Two thousand ($ 2,000.00) DOLLARS per month, the first of such monthly payments to commence on May 1st, 1993.

The agreement contains a one year renewal clause.

29. The second agreement is between Ashworth and Gaspo. It is identical in all respects to the agreement between Ashworth and Thomas (even to the point of the incomplete recitation of the duties and functions to be performed in paragraph 3) substituting only the name "Gaspo" where the name "Geoff' appears and specifying a payment of $7,500.00 from Ashworth to Gaspo for the services rendered (as opposed to the $2,000.00 payment from Ashworth to Geoff Thomas).

30. Although not produced as directed, we accept Mr. Spoletini's statements that the bank records of Ashworth would disclose that the monthly payments required to be made by these agreements and the lease have in fact been made.

31. Mr. Spoletini stated that he had no relationship to Gaspo, Central Forming or Ash­worth other than the relationship reflected in the documents produced. He stated that he was no more than an employee of Ashworth, and held the position of project manager with that corporate entity. From the description of his job it is apparent that Mr. Spoletini performs the duties which one would typically expect a project manager to perform including the overseeing and co-ordina­tion of Ashworth's construction activities and the activities of those sub-contractors engaged by Ashworth. It is also not in dispute that since in or about April 1993 Gaspo has not bid on any con­struction work.

Altracon

32. This then leaves us to explore the relationship, if any, between Altracon and any of the other corporate responding parties. In this regard we note again that ACCI is not a responding party to these proceedings as the Board did not deal with the applicant's motion to add ACCI as a party, or its motion to consolidate the application with respect to ACCI to these proceedings.

33. It is not disputed that Altracon is bound to the carpenters' provincial collective agree­ment. Filed with the Board were settlement documents entered into between the Carpenters and Altracon in which Altracon agrees that it is bound to the carpenters' provincial collective agree­ment.

34. Altracon was incorporated August 2, 1985 (we note parenthetically that ACCI was incorporated approximately four years later). Filings with the Ministry of Consumer and Commer­cial Relations indicate that Altracon's officers and directors are Gianpaolo (Paul) Lametti and Geoffrey H. Thomas. Mr. Lametti and Mr. Thomas, together with two other corporate entities namely "Briscan Developments Inc." (owned and controlled by Mr. Lametti) and "Spyder Hold­ings Limited" (owned and controlled by Mr. Thomas) entered into a shareholders agreement dated May 15, 1987 with respect to the shares of Altracon. Pursuant to that shareholders' agree­ment Mr. Lametti together with Briscan and Mr. Thomas together with Spyder each own fifty per cent of the shares of Altracon.

35. Finally, it was not disputed by the applicant trade union that the businesses of the vari­ous corporate responding parties were not identical. Although each of the responding parties did, or continues to, carry on business in the construction industry, the nature, extent and scope of their work within this industry is somewhat different. When in business Central Forming was a forming and concrete sub-contractor. Gaspo is or was a concrete sub-contractor. Ashworth and Pamina act as general contractors in the open market and, on a competitive bid basis, have engaged in a number of large projects. Altracon is a smaller general contractor operating primarily on an invited tender basis. In this latter regard Mr. Lametti stated that Altracon does not compete with Ashworth and would not get the work even if it did attempt to compete with Ashworth on the open market because of the relative size and expertise of the two companies.

Applicant's Submissions

36. Within this framework counsel for the union argued that the necessary preconditions to granting the applications under section 64 and subsection 1(4) have been established. Counsel sub­mitted that in the absence of any pleadings from Ashworth or Pamina the Board should deem that those two parties have accepted all of the facts stated in the applications. With respect to the other responding parties, counsel asserted that there was common direction and control between Ash-worth and Altracon in the form of Mr. Thomas, an officer, director and shareholder of both. He submitted also that the agreements and arrangements between Gaspo (and its owner Mr. Spoleti­ni) and Ashworth indicate that Gaspo and Ashworth essentially entered into a partnership agree­ment whereby Gaspo had an eighty per cent interest and Mr. Thomas had a twenty per cent inter­est in Ashworth. In the absence of any other evidence or the production of the bank records and cancelled cheques of Ashworth as ordered by the Board, counsel asserted that it was reasonable to conclude that either:

a) All of the money flowing into Ashworth was paid out to Gaspo and Geoff Thomas in accordance with the agreements each had with Ashworth (thereby evidencing the eighty per cent - twenty per cent partnership); or

b) The records if produced would not support the assertions of the respective parties that there were no other dealings or relationships between Ashworth and the other responding parties and in particular between Ashworth and Gaspo and/or Mr. Spoletini.

37. Counsel noted that since Mr. Spoletini became involved with Ashworth in April 1993 (Ashworth having been incorporated in September 1992) Gaspo has ceased to operate in the con­struction industry while Ashworth has undertaken a number of construction projects commencing in or about March 1993. It was his assertion that in fact the unionized contractor Gaspo had merely folded its business activity into the business of the non-unionized contractor Ashworth. Ashworth was merely a device used by both Mr. Thomas and Gaspo to avoid the contractual relations to which each was bound with the carpenters' union (Mr. Thomas being bound to recognize the Car­penters' as a result of his involvement with Altracon, another unionized contractor). Moreover, although the main business of each of the responding parties differed, the business and activities of each overlapped in part. The fact that they overlapped only in part and not in total was not suffi­cient to deny the applications under section 64 and subsection 1(4) of the Act (see for example Warren Steeplejacks Limited, [1989] OLRB Rep. Mar. 309, Stebill Limited, [1989] OLRB Rep. Apr. 384).

38. As relief counsel requested that the Board declare that the responding parties constitute a single or common employer for purposes of the Act, that each is bound to the carpenters' provin­cial collective agreement, and that each was jointly and severally liable for the payment of damages awarded to the union by reason of Gaspo's violations of that agreement as reflected in the Board's decisions of February 19, 1993 and May 12, 1993. (see Lakeridge Acoustics, [1993] OLRB Rep. Feb. 137, Golden Arm Flooring Inc., [1992] OLRB Rep. June 731). In this latter regard counsel for the carpenters indicated that the trade union did not seek to have Altracon held jointly and severely liable for the past damages incurred by Gaspo. Rather the union sought to bind Altracon only for any damages arising as a result of ongoing grievances and only insofar as Mr. Thomas con­tinued to retain an interest in Altracon. Counsel submitted that the financial consequences to Altracon flowing from the common employer declaration should be limited to the extent and pro­portion of Mr. Thomas' continued interest and involvement with Altracon.

39. Counsel for the union requested that the referral of the grievances in Board File 3667-

93-G be deferred as there was insufficient evidence before the Board in respect of that matter.

Submissions of the Responding Parties

40. For their part each of the responding parties requested that all of these matters be dis­missed as there was insufficient evidence to support either the declarations sought in the section 64 and subsection 1(4) applications, or the referral of the grievances under section 126 of the Act.

41. On behalf of Altracon Mr. Lametti argued that there was no evidence of common direc­tion or control between Altracon and the other responding parties. Mr. Thomas no longer had an interest in, or direction of Altracon and was precluded by the terms of the shareholders' agreement from binding Altracon to any arrangements without the consent of Mr. Lametti (which consent Mr. Lametti had not given). Moreover, Ashworth and Altracon did not carry on associated or related activities but rather operated in two separate fields of the construction industry.

42. Mr. Spoletini on behalf of the other responding parties concurred that there was no evt­dence to support granting the declarations sought by the trade union. He submitted that the union had gone on a "fishing expedition" but had been unsuccessful in turning up any evidence to sup­port either a finding of common direction or control or a violation of any agreement to which Gaspo or any of the other responding parties was bound.

43. Mr. Spoletini argued that there was no evidence to suggest Mr. Thomas had any inter­est or involvement with Gaspo. As to Mr. Thomas' interest in or involvement with Altracon, the evidence indicated that Altracon was in fact a company owned by two other companies namely Briscan Development Inc. and Spyder Holding Limited.

44. Mr. Spoletini submitted that adverse inferences could not and should not be drawn from either the lack of pleadings by Ashworth or Pamina, or a failure to produce the documents ordered to be produced by the Board on May 30, 1994. Mr. Spoletini reiterated his position that the responding parties had produced all the documents in their possession with the exception of the documents relating to the two projects which he asserted were residential and therefore were not relevant. He indicated that he was prepared to produce those documents but before doing so wanted a clear ruling from the Board that the documents were relevant and that he was obliged to produce them. With respect to any other documents which were not produced, Mr. Spoletini indi­cated that these documents were not in the possession of the responding parties and therefore could not be produced on June 6th as directed. Mr. Spoletini further indicated that the production of those documents could probably be completed in August or September. In the result it was asserted that to the extent possible the responding parties had complied with the Board's order and therefore adverse inferences should not be drawn.

45. We have determined not to accept the submissions of the responding parties that adverse inferences should not be drawn from the failure to file a response to the applications, the failure to produce documents as ordered or to otherwise tender evidence before the Board. In par­ticular, with respect to the failure to produce documents we note that on May 30, 1994 Mr. Spole­tini had also argued that documents with respect to a project which he stated was a residential con­struction project should not be ordered to be produced. At that time the Board indicated its decision to Mr. Spoletini with respect to that issue and directed the production of those documents and specifically indicated to him that the documents pertaining to the Yellow Brick House were included in our order for production. As to the assertion that documents were not in the possession of the responding parties and therefore could not be produced until August or September, the Board notes that the June 6, 1994 date was agreed upon by the parties at the hearing of May 30, 1994. At that time there was no suggestion by any of the responding parties that these documents were either not readily available or were in the possession of third parties. In these circumstances the Board concluded that there were no valid reasons why the documents were not produced, and no legitimate circumstances which would warrant delaying these proceedings for a further three or four months rather than proceeding on the scheduled hearing dates of June 8 and June 10 (which hearing dates had been agreed upon by the parties in February 1994, with the notice of hearing being sent March 21, 1994).

46. On the issue of common direction or control Mr. Spoletini asserted that he owned Gaspo and that Mr. Thomas had no ownership or involvement with either Gaspo or Central Form­ing. Mr. Thomas had an interest in Ashworth but neither Mr. Spoletini, Gaspo nor Central Form­ing had any interest, ownership or direction or control of that corporate entity. Mr. Spoletini argued that the union had not put forth any evidence to support its contention that Ashworth was a device used by Mr. Thomas and Gaspo to circumvent or avoid the trade union, or to support coun­sel for the trade union's assertion of an 80 per cent - 20 per cent partnership. Instead, the docu­

ments tendered indicated that Gaspo had merely entered into certain commercial transactions (a lease and an agreement to provide services) with Ashworth in the same way as Mr. Thomas had entered into an agreement with Ashworth for the provision of services. Any relationship between and amongst Gaspo, Ashworth, Mr. Spoletini, Mr. Thomas or any of the other responding parties was limited to those outlined in these various commercial transactions and contractual documents. Mr. Spoletini further submitted that as project manager for Ashworth he had limited involvement in the affairs of Ashworth, and that control and direction of that corporate entity (i.e. which jobs to bid, the bonding arrangements etc.) rested with Mr. Thomas.

47. On the issue of any associated or related activities carried on by these responding par­ties Mr. Spoletini noted that the nature of the business of each of these responding parties was dif­ferent. In addition he noted that there was no evidence to suggest that any of the other corporate entities could prevent Gaspo from reactivating its construction activities.

48. Finally, it was. asserted by Mr. Spoletini that there was not a shred of evidence to sup­port the grievances filed by the trade union. Nothing before the Board suggested that there had been any violation of any collective agreement to which any of the responding parties may be bound. The responding parties therefore requested that all of these applications be dismissed.

Decision

49. We start with a brief synopsis of the purpose, intent and effect of section 64 and subsec­tion 1(4) of the Act pursuant to which the applications in Board Files 3666-93-R and 3857-93-R have been filed.

50. In KNK Limited, [1991] OLRB Rep. Feb. 209, an application under subsection 1(4) of the Act, the Board wrote:

51. Section 1(4) of the Act was enacted in 1971. It deals with situations where the commercial activities which generate employment relationships regulated by the Act, may be carried on through more than one legal entity. Where those legal entities are engaged in related economic activities under common control or direction, the Board is empowered to "pierce the corporate veil" and declare them to be one employer for the purposes of the Act.

52. Section 1(4) clearly and specifically modifies both the common-law notion of "privity of con­tract" and commercial law assumptions based upon the separate legal identity of the corporate shell. As a result of section 1(4), collective agreement rights need not be co-extensive with the legal framework of the business. To this extent, labour law insulates collective bargaining from disruption should the exigencies of the market prompt an employer to change the number or form of the legal vehicles through which it carries on business. As a result of a 1975 amendment, section 1(4) no longer requires that related business activities be carried on simultaneously. The Legislature has recognized that the identity of the business (as opposed to its legal envelope) may be preserved even though the legal vehicles through which it is carried out may change from time to time.

53. A classic example of the "mischief' to which section 1(4) is directed can be illustrated by Napev Construction Ltd., [1976] OLRB Rep. March 109 (application for judicial review dis­missed by the Divisiona] Court on May 24, 1977, unreported). In that case, Napev was bound by a collective agreement with the Carpenters' Union which, for reasons which need not be explored here, Napev found too restrictive. To avoid these contractual obligations, the princi­pals of Napev created a new and allegedly independent company named "Vepan", which then entered into less onerous commercial and collective bargaining relationships. When challenged, Vepan claimed that it was a different legal entity than Napev and that, by virtue of the common­law principle of "privity of contract" it was not bound by any of the obligations previously undertaken by Napev. It was clear to the Board, however, that Vepan was not a truly indepen­dent business. It was merely a device to avoid the restrictions of the Carpenters' collective agreement and permit more economic flexibility. The Board declared that Napev and Vepan were one employer for the purposes of the Act, and an application for judicial review was dis­missed.

54. We do not suggest that Napev is necessarily representative of the dozens of cases which the Board has considered over the years, nor in our view is it necessary to undertake an exhaustive review of those cases. We mention Napev only because it illustrates a recurring problem in the construction industry to which section 1(4) was specifically directed: companies with established contractual relationships may find it advantageous to "spin off' related but purportedly inde­pendent companies, which then carry on business either "non-union" or with more congenial collective bargaining partners.

55. It is important to note that section 1(4) is not an unfair labour practice provision. Although some commercial dealings which trigger section 1(4) may constitute an unfair labour practice, section 1(4) itself does not require a finding of "anti-union animus". It is not limited to commer­cial "schemes" designed to escape from the union. It can also apply to bona fide business trans­actions which only incidentally frustrate established statutory rights. Section 1(4) is not a "pen­alty" provision. It merely allows the Board to consider such business transactions from a labour relations perspective rather than common or commercial law rules.

56. The Board then went on to refer to another case, Brant Erecting and Hoisting, [1980] OLRB Rep. July 945, a case in which "a key principal behind one firm ceased to carry on an active business, then shortly thereafter, became the key principal behind a newly-formed company carry­ing on essentially the same business." We also find it useful to refer to portions of that decision:

Section 1(4) was enacted in 1971 and deals with situations where the economic activity giving rise to employment or collective bargaining relationships regulated by the Act, is carried out by or through more than one legal entity. Where such legal entities carry on related business activi­ties under common control or direction, the Board is empowered to pierce the corporate veil. Section 1(4) ensures that the institutional rights of a trade union, and the contractual rights of its members, will attach to a definable commercial activity, rather than the legal vehicle(s) through which that activity is carried on. Legal form is not permitted to dictate or fragment a collective bargaining structure: nor will alterations in legal form undermine established bargaining rights. In this respect the purpose of section 1(4) is similar to that of section [64] which preserves the established bargaining rights and collective agreement when a "business" is transferred from one employer to another. Section [64] has been part of the scheme of the Act since the mid 1960's. Neither remedial provision requires a finding of anti-union animus; their primary appli­cation is to bona fide business transactions which incidentally undermine or frustrate established statutory rights. Since the two sections are complementary, it is not unusual, as in the present case, for an applicant to rely on both.

13. Section 1(4) does not require that related business activities under common control or direc­tion be carried on simultaneously or contemporaneously. This issue was clarified in 1975 by the addition section 1(4) of the phrase "whether or not simultaneously". The amendment reflects a legislative recognition that the essential unity and identity of an economic activity (which gives rise to employment) may be preserved even though the legal vehicles through which the activity is carried on will not operate simultaneously; and business may be effectively transferred from one corporate entity to another, without any of the indicia of a "transfer of a business" which might trigger the application of section [64]. This is especially the case in the construction indus­try where many of the employers will not have the permanence or investment in fixed plant and equipment characteristic of a manufacturing concern. A small construction company can move from jobsite to jobsite or place to place, assembling tools, equipment and a labour force as required after it has made a successful bid. There may be no established economic organization labour force or configuration of assets. A single principal may have several companies which are used, more or less interchangeable, so that bidding is done and work performed through which­ever company is convenient. In such circumstances there may be an effective transfer of busines­ses between related business without any apparent disposition of assets, inventory, trade names, goodwill, employees, etc. Similarly, where capital requirements ate minimal and business rela­tionships transitory, it is relatively easy to wind up one business, and create another one which carries on essentially the same business as before. Indeed there will often be good commercial reasons for doing so unrelated to any express desire to undermine the union's bargaining rights. The earlier company may have run into financial difficulties, or lost its reputation, or there may be legal, accounting or tax advantages in establishing a new vehicle through which the business, or related business activities can be conducted. Again, it is quite possible to do this without a clear and concrete disposition between the two firms so as to call section [64] into play. To ensure that the industrial relations status quo is preserved, the Legislature has provided that where two employers carry on related economic activities, under common control and direction, whether or not simultaneously, they can be treated as one for the purposes of the Act. How­ever, it should be noted that section 1(4) is discretionary. The Board need not make a 1(4) dec­laration even when the conditions precedent are present: and has not done so, for example, where a trade union is seeking to extend rather than preserve its bargaining rights.

14. A more difficult question is whether Brant Erecting and Hoisting and Provincial Steel can be said to have engaged in "associated or related activities or businesses" since, for practical pur­poses, Brant Erecting ceased to exist as a going concern prior to the establishment and subse­quent incorporation of Provincial Steel. The respondent contends that the two businesses cannot be "related" within the meaning of section 1(4) because they were never engaged in any joint ventures or business endeavours, nor were they carrying on business at the same time. The respondent argues that such overlap as there may have been between the activities of Provincial Steel and Brant Erecting, was solely for the purpose of winding up the latter company and can­not be regarded as the kind of related activity to which section 1(4) is directed. But for the 1975 amendment to the Act, this argument would have considerable force; but it is now clear that the "associated or related activities or businesses" need not be carried on simultaneously. The amendment extends the ambit of section 1(4) to situations in which one business entity is actively carrying on business and the other is not. It is not necessary to have shared participation in a common business or endeavour or even contemporaneously economic activity. The rela­tionship between the business entities is a functional rather than a temporal one. Businesses or activities are "related" or "associated" because they are of the same character, serve the same general market, employ the same mode and means of production, utilize similar employee skills, and are carried on for the benefit of related principals. If these criteria are met, two busi­nesses may be "related" within the meaning of section 1(4) even though their activities are car­ried on through different or corporate vehicles and are not carried on simultaneously. It is evi­dent that the Legislature has created a regime of collective bargaining law which significantly modifies the common law notions of "privity of contract" or "the corporate veil".

15. Given that this application involves activities within the construction industry we find it also useful to refer to the following comments in Frank Plasfina Investments Ltd., [1986] OLRB Rep. June 720:

16. Given the remedial thrust of section 1(4) and the broad language chosen by the Legislature ("associated" or "related", "activities" or "businesses"). It is apparent that the section was intended to apply to a wide variety of commercial activities, even when an employer's main or principal business concern may be something else. That was the opinion of the Board in Elmont Construction Limited, [1974] OLRB Rep. June 342 (application for judicial review dismissed, sub nomine, Elmont Construct Limited and Bruce Huntley Contracting Limited v. Toronto Building and Construction Trades Council et al, CLLC 14.270), and it is one with which we respectively agree. The fact is, that a firm engaged in the construction business can, with relative ease, become involved, from time to time, in various sectors, subdivisions, phases, or special­ized kinds of construction work, depending largely upon the business opportunities which present themselves, and we do not think we should readily hold that those activities are "unre­lated" - particularly if they are being undertaken at the same time and involve common manage­rial or employee skills.

17. The principles and legislative objectives underlying subsection 1(4) have been identified by the Board in numerous cases and can be conveniently summarized as follows:

Subsection 1(4) is designed:

(a) to prevent or protect from artificial erosion the bargaining rights of the

union,

(b) to create or preserve viable bargaining structures, and

(c) to ensure direct dealings between a bargaining agent and the entity with real economic power over the employees.

(See for example Industrial Mines Installations Limited, [1972] OLRB Rep. Dec. 1029, Acto Build­ing (Eastern) Limited, [1979] OLRB Rep. June 465, Elmont Construction Limited, [1974] OLRB Rep. June 341, Dominion Stores Limited and Mm-A -Mart Limited, [1978] OLRB Rep. Nov. 1013, Harold R. Stark Limited, [1978] OLRB Rep. Oct. 945, West York Construction Limited and Bow Canada Limited, [1978] OLRB Rep. Sept. 879, Penmarkay Foods Limited, [1984] OLRB Rep. Sept. 1214). The Board's authority to grant a common employer declaration is discretionary. Not­withstanding the presence of the statutory preconditions, the Board need not make a declaration under sub-section 1(4).

54. In Penny Lane Food Markets Limited, [1993] OLRB Rep. Mar. 230, a case dealing with an application filed pursuant to section 64 of the Act, the Board made similar observations to those expressed in KNK, supra, while examining the purpose and rationale of the "successor employer" or "sale of a business" provisions of the Act.

55. Section 64, both as it was prior to January 1, 1993 and now, is remedial legislation designed to prevent the intentional or incidental frustration or erosion of established bargaining rights as a result of changes in the structure or ownership of a business or part of a business. It operates to attach bargaining rights to a business activity. Like section 1(4) of the Act, an analogous pro­vision, section 64 recognizes that, for labour relations purposes, a "business" is a concept which does not lend itself to precise definition. For purposes of the Labour Relations Act, a "business" is an economic activity, whether for profit or not, which can be conducted through a variety of legal vehicles or arrangements. It is this activity, not its form or who owns it, which gives rise to employer-employee-trade union relationships which are regulated by the Act and to which bar­gaining rights attach. Consequently, bargaining rights, once established, attach to the activity, as the employer, rather than to a particular name, form or owner, and so long as that activity con­tinues the bargaining rights continue to exist. Common law or commercial law concepts have limited application in section 64 proceedings. Indeed, it is those very concepts and the labour relations mischief which they caused which section 64 (and section 1(4)) is intended to remedy.

(See also Gallant Painting, [1991] OLRB Rep. Sept. 1051, The Tatham Company Limited, [1980] OLRB Rep. Mar. 366, Aircraft Metal Specialist Limited, [1970] OLRB Rep. Sept. 702, Thunder Bay Ambulance Services Inc., [1978] OLRB Rep. May 467, Metropolitan Parking Inc., [1979] OLRB Rep. Dec. 1193.)

55. We find that Gaspo, Central Forming, Altracon, Ashworth and Pamina are engaged in related activities or business. Although the activities of these corporate entities are not identical (the scope of work of some being much broader than that of the others) we consider it more signifi­cant to focus on the nature of the work being performed and the work and skills of the employees who perform that work. These responding parties are or were all engaged in construction activities in which Carpenters are or may be employed. Thus, included in their construction activities is the performance of carpentry work by carpenters. The differences which do exist amongst the activi­ties of the responding parties, although not irrelevant, are not such as would lead us to conclude that the activities of the responding parties are "unrelated" for purposes of subsection 1(4) of the Act.

56. We find that there is common direction and control between and amongst the respond-

ing parties Gaspo, Central Forming, Ashworth and Pamina. We do so, both on the material before us and by reason of the adverse inferences which we have drawn from the lack of production and lack of evidence produced by these responding parties. Mr. Spoletini and his wife own or control Gaspo and Central Forming. Mr. Spoletini's spouse is also a director of Pamina. Mr. Spoletini who controlled and directed the construction activities of Gaspo while it was engaged in the construc­tion industry is now the Project Manager for Ashworth and is by reason of that position closely involved in the management and construction activities in which Ashworth is engaged. His man­agement involvement in the affairs of Ashworth for example includes the representation of Ash-worth in these legal proceedings before the Board. Mr. Thomas (ostensibly the sole owner, officer and director of Ashworth) and Gaspo are each contractually obliged to perform identical services on behalf of Ashworth. From a managerial perspective, there is nothing to suggest that anyone other than Mr. Thomas and Mr. Spoletini are involved in the day-to-day activities and operations of Ashworth. There is also nothing to suggest that anyone other than Mr. Thomas and Gaspo and/or Mr. Spoletini gain any of the financial rewards which accrue to Ashworth as a result of its construction activities. Ashworth and Gaspo operate out of the same business premises. Mr. Thomas is also a director of Pamina. The facts before us and the adverse inferences which we have drawn from the responding parties failure to adduce contrary evidence have caused us to conclude that the relationship between and amongst Gaspo, Central Forming, Ashworth and Pamina is not one rooted merely in commercial, truly arms length business relationships. The preconditions for a declaration pursuant to sub-section 1(4) are present in the relationships between and amongst Gaspo, Central Forming, Ashworth, and Pamina.

57. The preconditions for a declaration pursuant to sub-section 1(4) also appear to be present in the relationship between Altracon and Ashworth. On the face of the formal documen­tary evidence before us, there is common direction or control within these two corporate entities in the form of Mr. G. H. Thomas, a common director, officer and shareholder of both corporate enti­ties.

58. There is however nothing which suggests that there has been any transfer of work, or any sale of all or part of Altracon's business, from Altracon to Ashworth or any other of the responding parties. Indeed, having regard to the evidence and material before us, the contrary appears to be the case. For some time now the actual business activities and relationships between Mr. Thomas and Mr. Lametti have been terminated, and have ceased to exist. There has been a parting of the ways. Mr. Lametti testified that Mr. Thomas has no actual involvement or real con­tinued interest in the operations of Altracon, and Mr. Lametti has never had any actual involve­ment or interest in Ashworth. Mr. Thomas has at best only a nominal interest or relationship to Altracon, and only a notional participation in the affairs of that corporate entity, by reason of his continued directorship. The actual affairs of Altracon are handled by Mr. Lametti.

59. Just as the Board will look beyond the names of the directors, officers and shareholders and will "pierce the corporate veil" to determine the true direction and control of a corporate entity, similar reciprocal treatment to the facts before us has caused us to conclude that notwith­standing the formal arrangements or legal form, true direction and control of Altracon rests with Mr. Lametti.

60. There is also nothing in the evidence or pleadings to suggest that Mr. Lametti and/or Altracon has any interest in, or direction or control of any of the other responding parties. The only "link" which exists between Altracon and the other responding parties is Mr. Thomas. At best it is Mr. Thomas and not Mr. Lametti or Altracon which has "spun off' a new corporate entity (Ashworth) which is ostensibly "non-union". (Before the Board Mr. Lametti acknowledged that Altracon has, and continues to be bound to the carpenters' provincial collective agreement and continues to recognize the bargaining rights of the Carpenters union in carrying out its con­struction activities.) Moreover it is Mr. Thomas who has a present and continuing relationship with the other responding parties.

61. On balance having regard to the entirety of the evidence and all of the circumstances before us we are not satisfied that, insofar as these applications relate to Altracon, the precondi­tions for the granting of a common employer or successor employer have been established. We are not satisfied that there is any common control or direction involving Altracon or Mr. Lametti, and we are not satisfied that there has been any "sale" of a "business" to or from Altracon. In the result, insofar as these applications relate to Altracon they are dismissed.

62. We turn then to the remaining issue of the exercise of our discretion as it relates to Ash­worth, Gaspo, Central Forming and Pamina. In the absence of the common employer declaration the potential exists for the erosion of the trade union's bargaining rights. Without such a declara­tion the work covered by the carpenters' provincial collective agreement would not have to be per­formed or subcontracted by Pamina or Ashworth in accordance with the terms of that collective agreement. In the absence of such a common employer declaration for example, Pamina and Ash-worth could engage a non-union concrete subcontractor to perform work which Gaspo might oth­erwise have performed in accordance with its collective agreement obligations.

63. In the construction industry, a trade union is not required to wait until actual erosion has been demonstrated before it is entitled to have its bargaining rights protected by a common employer declaration (see for example West York Construction Limited, supra, and Kustom Insula­tion Limited, [1979] OLRB Rep. June 531). The nature of the industry is so fluid and flexible that requiring a demonstration of actual erosion could seriously undermine the protection granted by section 1(4). The threat to the Carpenters bargaining rights exists in the presence of Pamina and Ashworth as general contractors carrying on related activities or businesses under common control or direction with Gaspo and Mr. Spoletini. In addition, if the common employer declaration was not granted Ashworth would in effect be able to rely on Gaspo's, Mr. Thomas' and Mr. Spoletini's experience and expertise (or "necessary experience and knowledge required to manage, supervise and give consultation to Ashworth". to use the words of their contractual agreements) without the contractual obligations to which Gaspo, Mr. Spoletini and Mr. Thomas are bound with the Car­penters.

64. For these reasons we have determined to exercise our discretion in favour of granting the declaration sought by the trade union. Accordingly, in all of the circumstances of this applica­tion we declare that Gaspo, Central Forming, Ashworth and Pamina are to be treated as one employer for purposes of the Labour Relations Act.

65. We further declare that Gaspo, Central Forming, Ashworth and Pamina are bound to the provincial collective agreement between the Carpenters' Employer Bargaining Agency and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America.

66. Finally, we are not satisfied that it is appropriate in all of the circumstances to direct that Pamina and Ashworth are jointly and severally liable for the past damages which the Board has ordered Gaspo to pay by reason of its decisions dated February 19, 1993 and May 12, 1993. In our view the decision of the Board in Golden Arm Flooring Inc., [1992] OLRB Rep. June 731 is somewhat different. There the Board ordered joint and several liability for damages which were awarded as a result of a grievance which had been filed after the application under subsection 1(4) of the Labour Relations Act had been filed. There is nothing in the material before us to indicate that at the time of the previous damage awards of the Board, either Mr. Thomas, Ashworth or Pamina were "related" to Gaspo, or involved in the projects which gave rise to those grievances.

The facts and circumstances arising as a result of those grievances appear to predate the present and continuing relationship between Ashworth, Pamina and Gaspo.

67. We are satisfied however that to the extent any damages flow from the grievances which form part of Board File No. 3667-93-G, it is appropriate to declare that the common employer dec­laration granted herein renders Gaspo, Central Forming, Ashworth and Pamina jointly and sever­ally liable for those damages.

68. With respect to the referral of the grievance we have determined that there is insuffi­cient evidence before the Board to enable the Board to make any decision in that matter. That lack of evidence is largely due to the failure of the respondents to produce the documents ordered to be produced or to otherwise tender evidence in this matter. In the circumstances we do not consider it appropriate to dismiss the grievances for lack of evidence thereby benefitting the very parties which have failed to comply with the Board's orders. Accordingly, Board File No. 3667-93-G will therefore be re-listed for hearing. The dates for that hearing will be set by the Registrar. The Reg­istrar will initially consult with the parties concerning those dates. In the event however that the parties are unable to mutually agree upon suitable dates, the Registrar may set the dates of hearing without further consultation.

69. We note that the issues arising in Board File No. 3667-93-G are several and separate from the issues which this panel has determined in dealing with Board Files 3666-93-R and 3857-93-R. The panel has not heard any evidence nor has it made any determinations with respect to the referral of a grievance. In the circumstances this panel is therefore not seized with hearing that matter.