Labourers' International Union of North America, Local 1059 v. 715241 Ontario Limited, 1998 CanLII 18276

[1998] OLRB REP. NOVEMBER/DECEMBER 974

0702-98-G; 1599-98-U; 2124-98-R; 2125-98-U; 2127-98-G; 2133-98-G Labourers' International Union of North America, Local 1059, Applicant v. 715241 Ontario Limited carrying on business as Hyde Park Concrete Co., Responding Party; Labour­ers' International Union of North America, Local 1059, Applicant v. 715241 Ontario Limited carrying on business as Hyde Park Concrete Co. and as Concrete Co. ("Hyde Park"), Co-Fo Concrete Forming Construction Limited, Dixie Concrete & Forming Inc., Concreteco Inc., Mobile Mix Concrete Products (1971) Ltd., Bozena Marie Miszczak and MieczyslaW Dziadura, Responding Parties; Labourers' International Union of North America, Local 1059, Applicant v. 715241 Ontario Limited carrying on business as Hyde Park Concrete Co. and as Concrete Co. ("Hyde Park"), Co-Fo Concrete Forming Construction Limited, Dixie Concrete & Fonning Inc., Concreteco Inc., Bozena Marie Miszczak and Mieczyslaw Dziadura, Responding Parties.

BEFORE: Harry Freedman, Vice-Chair.

APPEARANCES: L. A. Richmond, A. Bowker and W Medeiros for the applicant; B.M. Miszczak in person and for 715241 Ontario Limited; no one appearing for the other responding parties.

DECISION OF THE BOARD; November 18, 1998

1. These are six related proceedings under the Labour Relations Act, 1995 (the "Act"): Board File No. 0702-98-G is a referral of a grievance for determination by the Board under section 133 of the Act; Board File No. 1599-98-U is an application under section 96 of the Act; Board File No. 2 124-98-R is an application for declaration under sections 1(4) and 69 of the Act; Board File No. 2125-98-U is an application under section 96 of the Act; and Board File Nos. 2127-98-G and 2133-98-G are referrals of grievances to the Board for determination under the Act. The Chair of the Board authorized me to sit alone to hear and determine these matters pursuant to section 110(14)(a) of the Act.

2. Prior to the hearing in these matters, all of the responding parties in Board File Nos. 2 125-98-U, 2127-98-G and 2133-98-G but for Bozena Marie Miszczak and 715241 Ontario Limited ("Hyde Park") had entered into a memorandum of agreement with the applicant by which they would be deleted as respondents in those proceedings. That memorandum of agreement also settled all of the outstanding matters between the applicant and all of the responding parties herein except Ms. Miszczak and Hyde Park. See the decision dated November 4, 1998 in Board File Nos. 2124-98-R, 2125-98-U, 2127-98-G and 2133-98-G.

3. The applicant and its counsel and Ms. Miszczak were present when the hearing in these matters convened on Thursday morning, October 29, 1998. Ms. Miszczak initially advised me that she was present solely because she had been served with a summons to witness and that she was not appearing either on her own behalf or on behalf of any of the responding parties. As a result of the settlement between the applicant and all of the responding parties other than Ms. Miszczak and Hyde Park, the applicant was continuing these proceedings against only Ms. Miszczak and Hyde Park.

4. I advised the applicant and Ms. Miszczak that the Board had received a letter from Hyde Park over the name of Ms. Miszczak requesting an adjournment of these matters. I asked Ms. Miszczak whether she intended to press the request for the adjournment on behalf of Hyde Park. When she advised me that she did wish to ask for an adjournment, I indicated to her that in order for Hyde Park and her as responding parties to have standing to make a request for an adjournment, she would have to appear before me on her own behalf and on behalf of Hyde Park and not simply as a witness. At that point, she advised me that she was, in fact, attending the hearing on her own behalf and on behalf of Hyde Park. I then received submissions from Ms. Miszczak and from the applicant with respect to the request for the adjournment. Following those submissions, I delivered the following oral ruling:

The responding party, Bozena Marie Miszczak attended before the Board because she had been served with summons to witness. She also advised the Board that she was present on her own behalf and on behalf of 715241 Ontario Ltd. She requests an adjournment of these proceedings because the lawyer she had used many years ago in labour relations matters could not be present today. Ms. Miszczak acknowledged that she only contacted counsel in connection with these matters three days ago. She did not do so earlier because she thought that these matters would be settled. She says that she was told by one of the other of the responding parties (her father) that they were close to a settlement. The applicant gave her no such assurance. The settlement meeting that she attended, from which she was excluded, occurred on October 16. She did not consult with counsel until Monday, October 26. She had notice of these proceedings before the end of September.

Ms. Miszczak, in my view, assumed the risk of both waiting to see if a settlement could be reached and not attempting to retain counsel until the last moment. Indeed, she waited over one week after the applicant settled with the other parties and not with her before speaking with counsel's office.

The applicant wants these matters to proceed. I am not persuaded that Ms. Miszczak did not have adequate time to obtain and instruct counsel. Her inability to do so was entirely of her own doing. She simply waited too long before trying to get counsel.

The Board therefore denies the request for adjournment. These matters are to proceed as scheduled.

5. Following delivery of the oral ruling denying the request for the adjournment, Ms. Miszczak requested and was granted a recess of 15 minutes in order to speak with counsel. The Board recessed at 10:30 a.m. for 15 minutes. When the Board reconvened the hearing at 10:45 a.m., Ms. Miszczak was not present. I requested counsel for the applicant to determine whether Ms. Miszczak was still within the building and whether she would be returning to the hearing. I advised counsel that I would wait another 15 minutes and would resume the hearing at 11:00 a.m. Ms. Miszczak was present when the hearing reconvened at 11:00 a.m.

6. Counsel for the applicant requested that the Board proceed with its application in Board File No. 2124-98-R in which the applicant seeks a declaration under section 1(4) of the Act that Hyde Park and Ms. Miszczak constitute one employer for purposes of the Act. The submission of the evidence and representations of the parties in the application in Board File No. 2124-98-R concluded just after 1:30 p.m. I advised the parties (including Ms. Miszczak) that I was reserving my decision on that application and would proceed with the remaining matters after a lunch recess. I also advised them that the hearing would recess for 45 minutes and that I would resume at 2:15 p.m. I convened the hearing shortly after 2:15 p.m. The applicant was present with its counsel. Ms. Miszczak was not present. At that point I asked counsel for the applicant to once again look for Ms. Miszczak to see if she was in the building and would be returning. I waited for Ms. Miszczak until 2:25 p.m. and then commenced the hearing. (I note that Ms. Miszczak did not return to the hearing before it concluded at 4:30 p.m.)

7. The applicant requested that the Board next proceed with its applications under section 96 of the Act (Board File Nos. 1599-98-U and 2125-98-U) in respect of Ms. Miszczak and Hyde Park.

8. The responding parties did not file a response to these applications and chose not to remain in attendance at the hearing. Rule 19 of the Board's Rules state:

9. 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.

Therefore, as the responding parties failed to both file responses to these applications and remain in attendance during the hearing of these matters, I was satisfied that the allegations made in these applications were established as facts that can be relied on by the Board. The allegations made in the application in Board File No. 1599-98-U are attached as Appendix B to this decision. The allegations made in the application in Board File No. 2125-98-U were similar.

9. Ms. Miszczak is the principal and directing mind of Hyde Park and is the sole director of Hyde Park. Hyde Park and the applicant are bound to the collective agreement between the applicant and the London and District Concrete Forming Contractors which expires February 28, 2001 (the "Collective Agreement"). Hyde Park and Ms. Miszczak were both bound to the earlier collective agreement between the applicant and the London and District Concrete Forming Contractors which expired February 28, 1998 (the "Prior Collective Agreement"). (See the decisions in 715241 Ontario Limited c.o.b. Hyde Park Concrete Co., Board File No. 1185-96-G dated August 7, 1996, January 30, 1997 and April 11, 1997, unreported.) The Collective Agreement was identified by Walter Medeiros, who testified with respect to the claim for damages on behalf of the applicant as having been executed on behalf of Hyde Park by Barry MacDonald. (Walter Medeiros has been a business representative of the applicant since 1991. His duties include administering the Collective Agreement by which Hyde Park and the applicant are bound.)

10. The applicant has established that Hyde Park, under the direction of Ms. Miszczak, has since 1996 failed to abide by both the Prior Collective Agreement and the Collective Agreement by failing or refusing to make the required remittances to the applicant and by failing or refusing to hire persons through the applicant's hiring hall to perform work covered by the collective agreements. The applicant had filed grievances against Hyde Park and has with some moderate success been able to secure payment of some the amounts owing. It is clear from the allegations made in these applications (which are facts that I accept as proved) that Ms. Miszczak and Hyde Park have actively avoided Hyde Park's obligations under the Prior Collective Agreement and the Collective Agreement while continuing to carry on work covered by those collective agreements.

11. Therefore, in these circumstances, I am satisfied that the applicant has established violations of sections 70 and 72 of the Act. More importantly, I am satisfied that not only has Hyde Park violated the Act but Ms. Miszczak, a person acting on behalf of Hyde Park, has also engaged in conduct which is contrary to the Act. As pointed out in paragraph 32 of the allegations, both responding parties have claimed that the applicant's repeated attempts to enforce its collective agreements have caused both delays in paying the applicant's members working for Hyde Park and not paying them for their work. That conduct was clearly intended to undermine the applicant in the eyes of its members as well as intimidate members of the applicant so that they would not seek enforcement of the collective agreements. As the directing mind of Hyde Park, Ms. Miszczak has caused Hyde Park to hire persons contrary to the collective agreements, not to make remittances required by the collective agreements and to frustrate the applicant in its attempts to enforce the collective agreements.

12. The Board has jurisdiction to find that Ms. Miszczak is personally liable for the violations of the Act committed by both her and Hyde Park. Sections 70 and 72 of the Act make reference to an "... employer or ... person acting on behalf of an employer ...". It is clear therefore that the Act specifically provides the Board with statutory authority to find an individual acting on behalf of an employer personally liable for violations of the Act. See Classic Masonry Inc., [1993] OLRB Rep. August 721; Nepean Roof Truss Limited, [1988] OLRB Rep. January 61 and Sunnylea Foods, [1981] OLRB Rep. Nov. 1640. As the Board said in Nepean Roof Truss Limited., supra, at p. 67:

The clear wording of those sections [sections 70 and 72], particularly where they state "no employer or person acting on behalf of an employer ..." gives the Board jurisdiction to find that an individual has breached the section, including an individual other than one working for a party unrelated to the corporate employer. We see nothing in that phrase which suggests that a person "acting on behalf of an employer" cannot be an owner or officer of the corporate employer.

Ms. Miszczak has, as the applicant points out, failed or refused to abide by the minutes of settlement she executed on her own behalf, ignored the undertaking she had given, sought to resile from the minutes of settlement she had executed, failed to appear at a hearing scheduled to deal with the grievances filed and only appeared and produced documents after the assistance of police was sought to execute a bench warrant issued by the Board. I am satisfied that Ms. Miszczak has regularly attempted to evade and obstruct the processes established under the Act and the collective agreements for securing the requisite wages earned by employees and remittances owed to the applicant. Thus, I find that Ms. Miszczak has also violated sections 70 and 72 the Act as a "person acting on behalf of' Hyde Park.

13. Mr. Medeiros gave evidence with respect to the applicant's claim for damages. The applicant claimed damages for the period from September, 1997 through to December, 1997 and for the period from February, 1998 through to the date of hearing. The applicant's claim for damages for the period from September through December, 1997 totalled $12,173.60.

14. The applicant based its claim for damages for that period in 1997 on violations of the Prior Collective Agreement and a collective agreement that the applicant had with Hyde Park in respect of truck drivers employed by Hyde Park. The truck driver collective agreement expired on August 31, 1996 and a no-board report had been issued on April 23, 1997. Therefore, there was no longer a collective agreement in operation between the applicant and Hyde Park in respect of truck drivers during the period of time for which damages were claimed for violations of the truck driver collective agreement. For these reasons, I disallowed the applicant's claim for damages that the applicant alleged arose from violations of the truck driver collective agreement.

15. Therefore, I am satisfied that the applicant established damages for violations of the Prior Collective Agreement for the period between September to December, 1997 in the amount of $9, 164.79.

16. The applicant also alleged that Hyde Park had failed to make remittances under both the Collective Agreement and the Prior Collective Agreement for the period between February 1998 through to the end of October 1998 and hired persons who were not members of the applicant to do work covered by the Collective Agreement. When I pointed out to the applicant that the collective agreements did not require remittances to be made until the 15th of the month following the month in which the work was done, the applicant did not press its claim for damages for the month of October, 1998 and limited its claim for relief for the period between February, 1998 and September, 1998.

17. The applicant established that Hyde Park had employed two persons who were not members of the applicant and had not been hired through the applicant's hiring hall to do work covered by the Collective Agreement for two months in June and July 1998. The applicant also established that it had unemployed members who were available to perform the work performed by those two persons. Therefore, I was satisfied that the applicant was entitled to damages arising from Hyde Park hiring persons who were not members of the applicant to perform work covered by the collective agreement when there were unemployed members of the applicant available to perform such work. (See Blouin Drywall Contractors Limited, 1975 CanLII 707 (ON CA), 8 O.R. (2d) 103 (Ont.C.A.)).

18. I am satisfied that Hyde Park failed to make the requisite remittances under the applicable collective agreements for the period between February, 1998 and September, 1998 in the amount of $11,138.00. The applicant has established that Hyde Park violated the applicable collective agreements by failing to make the requisite remittances under those collective agreements for the relevant periods (September to December 1997 and February to September 1998) in the total amount of $20,302.79. I also find that interest is payable on those outstanding remittances in accordance with those collective agreements. Such interest, based on the Hallowell House Limited principles (see Hallowell House Ltd. [1980] OLRB Rep. Jan. 35) amounts to $2,936.33. Therefore, the applicant has established damages in the total amount of $23,239.12 in respect of unpaid remittances. In addition, the applicant has estab­lished damages arising from Hyde Park employing persons who were not members of the applicant to perform bargaining unit work. I assess those damages to be $17,135.60.

19. In the result, I find that the applicant has established damages for the violation of the applicable collective agreements in the total amount of $40,374.72.

20. Following the completion of submissions in the applications under section 96 of the Act (Board File Nos. 1599-98-U and 2125-98-U), the applicant requested that the grievance proceedings in Board File Nos. 0702-98-G, 2127-98-G and 2133-98-G be adjourned in order to permit the applicant to review the relevant documents that Ms. Miszczak had been directed to produce pursuant to a summons to witness that had been served upon her. I note that the summons to witness served on Ms. Miszczak related to Board File No. 1599-98-U. That matter was now completed. Nevertheless, since those three grievance matters are continuing and the applicant has satisfied me that the documents it seeks may be relevant to those proceedings, I am prepared to order their production pursuant to section 133(9) of the Act, which provides that subsections 48(10) and (12) to (20) inclusive apply to the Board when it is proceeding under section 133 of the Act.

21. Having regard to the representations made by counsel for the applicant and pursuant to section 48(12) of the Act, Hyde Park is ordered to produce the documents relevant to the section 133 proceedings in Board File Nos. 0702-98-G, 2127-98-G and 2133-98-G.

22. Counsel for the applicant made representations before me with respect to the additional remedies sought by the applicant. The applicant sought a declaration that both Hyde Park and Ms. Miszczak were bound to the Collective Agreement. I advised counsel for the applicant that as Ms. Miszczak was neither an employer within the meaning of the Act nor an employee in the bargaining unit described in the Collective Agreement, in the absence of a single employer declaration under section 1(4) of the Act, she could not be bound by the Collective Agreement. (See section 56 of the Act.) Therefore, I declined to make the declaration requested by the applicant with respect to Ms. Miszczak and was prepared to make that declaration with respect to Hyde Park only.

23. The applicant also requested that Hyde Park post a $20,000 bond with respect to each trust fund under the Collective Agreement. There are 3 separate trust funds with separate boards of trustees for each trust fund. The applicant sought to have Hyde Park post a $60,000 cash bond ($20,000 for each trust fund). Section 14.04(a) of the Collective Agreement provides that a "... delinquent employer may be required by the trustees of the funds to deposit with the trustees a cash bond of up to $20,000". When I asked counsel for the applicant whether the trustees had made that request, the applicant, through Mr. Medeiros, produced a letter dated May 5, 1998 addressed to Hyde Park to the attention of Ms. Miszczak which stated that the applicant, on behalf of the trustees had directed Hyde Park to deposit a cash bond of $20,000 with the trustees.

24. I was satisfied that the Collective Agreement contemplated a maximum cash bond of $20,000 to be deposited among the boards of trustees of the three funds. To that end, based on the representations made by the applicant, I am prepared to direct that a cash bond of $10,000 be deposited with the trustees of the Labourers' Multi-Local Welfare Trust Fund of Ontario, a cash bond of $8,000 be deposited with the trustees of the Labourers' International Union of North America, Local 1059 Training Trust Fund and a cash bond of $2,000 be deposited with the trustees of the Labourers' Pension Fund of Central and Eastern Canada.

25. Following the completion of the representations and the request for the adjournment of the outstanding grievance matters, counsel for the applicant advised the Board that in view of the remedies that the Board was prepared to grant in respect of Ms. Miszczak in the applications under section 96, the applicant wished to withdraw its application under sections 69 and 1(4) of the Act in Board File No. 2124-98-R. Therefore, having regard to the request of the applicant and as the responding parties were not present to make representations in respect of the applicant's request, the Board permitted the applicant to withdraw its application in Board File 2124-98-R.

26. The application in Board File No. 2124-98-R is hereby withdrawn by leave of the Board.

27. The Board hereby declares that 715241 Ontario Limited c.o.b. as Hyde Park Concrete Co. and Concrete Co. is bound by the collective agreement between Labourers' International Union of North America, Local 1059 and to London and District Concrete Forming Contractors which expires February 28, 2001.

28. The Board is prepared to grant some of the additional remedies sought by the applicant in its applications under section 96.

29. The applicant sought, among other things, an order directing the responding parties to execute a direction requiring the clients for whom they do work to remit from the draws payable to the responding parties such amounts that the applicant certifies in writing are owed to it. The applicant points out that the nature of the business carried on by Hyde Park makes it "extremely inefficient" to use the existing civil remedies available to collect debts. I indicated to counsel during the course of submissions that I was inclined to make the order sought. On further reflection, however, and despite the persuasiveness of counsel's argument, I do not consider it appropriate at this time to make the order sought. The "extreme inefficiency" in collecting the debts owed by the responding parties to the applicant results in part from the various statutory regimes that are in place under which debtors and creditors exist. In effect, the applicant seeks the Board's assistance in by-passing the regimes applicable to debtor/creditor relationships to secure payment for it in priority to all other creditors of the responding parties.

30. It was initially attractive to me to provide a remedy that would secure all future obligations owed to the applicant by the responding parties and there is little doubt that the remedial breadth of section 96 of the Act confers that jurisdiction on the Board. It would be nevertheless extraordinary for the Board to require an employer to direct its customers to pay a union directly such amounts that the union merely certifies are owed to it. Such a direction would be equivalent to a pre-judgment garnish­ment in civil proceedings. In the absence of compelling evidence establishing more than extreme inefficiency in collecting debts, I have now decided that on the basis of the representations I received I will not grant that aspect of the order requested by the applicant. I am, however, prepared to receive further evidence and submissions in respect of this remedial issue should the applicant wish to pursue its request that the responding parties execute a direction to their clients requiring their clients to make remittances to the applicant from the draws payable to the responding parties.

31. In these circumstances, the Board directs the applicant to notify the Board in writing (with a copy sent to the last known address of the responding parties) within 10 days of the date of this decision whether it wishes to continue to seek an order requiring the responding parties to execute a direction. If the Board is not so notified within that time, the request for that particular remedy is denied.

32. Having regard to the representations of the applicant, based on the evidence presented to the Board, and pursuant to section 96 of the Act, the Board hereby directs 715241 Ontario Limited and Bozena Marie Miszczak jointly and severally to:

(a) pay forthwith to the applicant the sum of $40,374.72;

(b) deposit forthwith cash bonds in the following amounts with the follow­ing boards of trustees:

(i) $10,000 with the board of trustees of the Labourers' Multi­-Local Welfare Trust Fund of Ontario,

(ii) $8,000 with the board of trustees of the Labourers' International Union of North America, Local 1059 Training Trust Fund, and

(iii) $2,000 with the board of trustees of the Labourers' Pension Fund of Central and Eastern Canada;

(c) provide a copy of this decision of the Board to each client with which either of them does business between the date of this decision and October31, 1999;

(d) place an advertisement in the Daily Commercial News once a week for six consecutive weeks commencing the week of November 23, 1998 containing the notice that is attached as Appendix "A" to this decision;

(e) provide the applicant up to October 31, 1999 with the addresses of the projects on which either of them or any other entity in which Bozena Marie Miszczak has a controlling interest does work prior to the com­mencement of such work, together with the address of the client for whom such work is being performed;

33. The Board further directs 715241 Ontario Limited to produce for inspection within 15 days from the date of this decision the following documents in its possession or under its control:

All documents, notes, correspondence, memoranda and records of any kind pertaining to construc­tion work, and in particular, concrete forming and finishing construction work, performed by 715241 Ontario Limited, carrying on business as Hyde Park Concrete Co. and as Concrete Co. ("Hyde Park"), and/or Bozena Marie Miszczak within the counties of Middlesex, Bruce, Elgin, Oxford, Perth and Huron, and in particular, but not limited to:

(1) all tenders or bids, letters of intent, invitations to submit proposals or bids, or any other tender documents submitted to or by any contractor or subcontractor in connection with the concrete forming and finishing construction work described above;

(2) all contracts or sub-contracts for the supply of services or labour;

(3) all invoices to and from contractors or sub-contractors, and payment records and can­celled cheques related to such invoices;

(4) all payroll records, including all computerized records, timesheets, paystubs and can­celled cheques for all employees;

(5) cheque ledger book(s) for the above-noted companies and individuals indicating any payments made with respect to (3) and (4) above; and

(6) any site superintendent's or foreman's log book indicating the number and identity of employees or sub-contractors employed by the above-noted companies and individuals on any construction projects, and the hours worked by such individuals.

34. The Board further directs Hyde Park to make the documents ordered produced available for inspection by counsel for the applicant or a representative of counsel for the applicant at the offices of Hyde Park or at another location as designated by Hyde Park within the City of London.

35. The Board hereby adjourns the referral of grievances to the Board for determination under section 133 of the Act in Board File Nos. 0702-98-G, 2127-98-G and 2133-98-G sine die for a period not exceeding one year. Unless within that time the applicant requests that the Board proceed with these grievance matters, they will be terminated.

APPENDIX "A"

THIS NOTICE IS BEING ADVERTISED BY DIRECTION OF THE ONTARIO LABOUR RELA­TIONS BOARD DATED NOVEMBER 18, 1998. THE BOARD FOUND THAT 715241 ONTARIO LIMITED AND BOZENA MARIE MISZCZAK CONTRAVENED THE LABOUR RELATIONS ACT 1995. IN ORDER TO REMEDY THE CONTRAVENTIONS OF THE ACT, THE BOARD DIRECTED 715241 ONTARIO LIMITED AND BOZENA MARIE MISZCZAK TO:

i) PAY DAMAGES TO THE LABOURERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 1059;

ii) NOTIFY LOCAL 1059 OF THE ADDRESS OF ANY PROJECTS THAT ARE UNDERTAKEN BY THEM TOGETHER WITH THE NAME OF THE CONTRACTOR ON WHOSE BEHALF SUCH WORK IS BEING DONE;

iii) ADVERTISE THIS NOTICE IN THE DAILY COMMERCIAL NEWS ONCE A WEEK FOR 6 WEEKS.

APPENDIX "B"

1. The Applicant, Labourers' International Union of North America, Local 1059 ("Local 1059") is a trade union representing labourers in and around London, Ontario, including the employees of the Responding Parties.

2. The Responding Party, 715241 Ontario Ltd., carrying on business as Hyde Park Concrete Co., and as Concrete Co. ("Hyde Park"), is a corporation incorporated pursuant to the laws of Ontario, carrying on concrete forming in and around London Ontario.

3. The Responding Party, Bozena Marie Miszczak ("Miszczak"), is the principal and directing mind of Hyde Park, and is the sole Director of Hyde Park.

4. The Applicant and corporate Responding Party are bound to the collective agreement between the Applicant and the London and District Concrete Forming Contractors, effective March 1, 1998 to February 28, 2001.

NATURE OF THE COMPLAINT

5. As is set out below, since at least the summer of 1995, the Responding Parties have continuously and purposefully breached the collective agreement.

6. As a result of the Responding Parties' continuing contempt for the collective agreement to which they are bound, the Applicant has been put to considerable expense in attempting to enforce the collective agreement. None of the Applicant's efforts, or its repeated appearances before the Ontario Labour Relations board have succeeded in causing the Responding Parties to honour their obligations pursuant to the collective agreement. As a result, the Applicant applies for the relief as set out in ... this application. A review of the events leading up to this application makes it evident that the relief sought is necessary to protect the bargaining rights of the Applicants [sic] and to protect the health and welfare, pension interests, and economic rights of the members of Local 1059 working for the corporate Responding Party.

7. On or about July 8, 1996, the Applicant filed a grievance with the Responding Parties concerning delinquency in making contributions to the benefit funds provided for under the collective agreement, being the Labourers' Multi-Local Welfare Trust Fund of Ontario, the Labourers' Pension Fund of Central and Eastern Canada, the Labourers' International Union of North America, Local 1059 Training Trust Fund, as well as the Applicant's dues and the dues payable to Labourers' International Union of North America, Ontario Provincial District Council.

8. On or about July 8, 1996, the Applicant also filed a grievance against the Responding Parties, stating that the Responding Parties had violated the collective agreement by failing to pay the rate increases which were to be effective March 1, 1996.

9. The grievance was subsequently referred to the Ontario Labour Relations Board (OLRB File No. 1185-96-G).

10. On or about August 2, 1996, the Applicant and Responding Parties entered into Minutes of Settlement. In these Minutes, the Responding Parties acknowledged they were bound to the collective agreement, and that they had violated it, and agreed that the Responding Parties would pay a total of $28,434.04 to the Applicant, pursuant to a repayment schedule. The amounts set out in these Minutes related to the Responding Parties' delinquency to the benefit funds from June 1995 to the end of June 1996, together with the short wages.

11. On or about August 7, 1996, the Board issued its decision, giving effect to the Minutes of Settlement between the parties.

12. The Responding Parties issued three cheques in respect of the above-noted Minutes. Each of these cheques was written on the account of Concrete Co. and signed by Bozena Marie Miszczak on behalf of Concrete Co. The Responding Parties delivered the first four payments required under the Minutes of Settlement, and delivered nothing further thereafter.

13. On or about September 26, 1996, the Board decision was filed with the Ontario Court, General Division. After the decision was filed, it came to the Applicant's attention that the Board decision contained a typographical error. This error was brought to the Board's attention or or about September 27, 1996. On or about January 30, 1997, the August 7, 1996 award was amended to correctly reflect the identity of the Responding Parties. This revised award was issued as an Order of the Ontario Court, General Division on February 14, 1997.

14. In the Minutes of Settlement, the Responding Parties acknowledged their obligation to make the contributions required by the collective agreement, and their undertaking to do so was a key aspect of the settlement. Despite this, the Responding Parties immediately defaulted on their obligations after the Minutes were signed, by failing to make the required contributions commencing in or about July 1996.

15. Further, once the Board's decision was issued as an Order of the Ontario Court, the Responding Parties attempted to resile from the Minutes of Settlement by claiming that Ms. Miszczak was not aware of the import of the Minutes of Settlement into which she entered. The Responding Parties then asked for a reconsideration of the Board's previous award of January 30, 1997.

16. On or about April 11, 1997, the Board issued a decision on the reconsideration, confirming its previous award, and confirming that all of the Responding Parties were bound to the collective agreement and by the Board's decision.

17. On or about May 16, 1997, the Applicant caused to be issued against the Responding Parties' bank account a garnishment for the balance of the principal owing under the original Board award, in the amount of $17,165.99, including court costs and interest.

18. In the meantime, the Responding Parties had made no contribution in respect of the months following June 1996, and were therefore, once again, in arrears to the funds approximately 12 months' contributions, and in violation of paragraph 7 of the Minutes of Settlement, which obliged them to make contributions on the dates and in the amounts required by the collective agreement, commencing July 1, 1996.

19. Accordingly, on or about June 18, 1997, the Applicant was obliged to bring an application under Section 96 in respect of the Responding Parties' default on the Minutes of Settlement.

20. In its response to the Section 96 application, the corporate Responding Party claimed that the garnishment fulfilled all of the Responding Parties' obligations under the Minutes of Settlement, and that it did not owe any funds to the Applicant.

21. In her response to the Section 96 application, the Responding Party Miszczak again claimed that she was not aware of the terms of the Minutes of Settlement, and again requested that her name be deleted from the Minutes of Settlement which she had signed, despite the fact that the Board had already reconsidered its own decision.

22. In the meantime, the Applicant also became aware that the corporate Responding Party was violating the collective agreement by hiring persons who were not members of the Applicant to perform work to which the collective agreement applied. The corporate Responding Party had also, once again, failed to make the necessary wage increase pursuant to the collective agreement, which was to be effective March 1, 1997. Accordingly, the Applicant was obliged to once again grieve these violations and to refer them to the Board for resolution. The hearing of the matter was scheduled for August 21, 1997, and the Summons to Witness for the Responding Party Miszczak was issued and served.

23. On August 20, 1997, the night before the hearing, the Responding Party Miszczak wrote to the Board requesting an adjournment on the basis that the corporate Responding Party had been unable to retain legal counsel. This allegation was made despite the fact that, after the grievance was filed, the Responding Parties' solicitors were filing responses and communicating with solicitors for the Applicant with respect to the Section 96 application.

24. The corporate Responding Party failed to appear at the hearing of the grievance, despite the Summons to Witness served on the Responding Party Miszczak. Accordingly, the Board issued a warrant for Miszczak's arrest to ensure her attendance at the next hearing date for the matter, which was rescheduled for September 25, 1997.

25. Following the issuance of the warrant for Ms. Miszczak's arrest, the Applicant was contacted by Ms. Miszczak's father, Mr. Mike Dziadura, to determine whether or not the matter might be settled. On the eve of the return date for the Section 133 hearing, at which Miszczak's attendance was to be secured with the assistance of the police, the Responding Parties also produced much of the documenta­tion that had been requested in the Summons to Witnesses. On the strength of these settlement discussions, the Applicant and the Responding Parties agreed to adjourn the September 25, 1997 hearing date, sine die.

26. Following these discussions, the Applicant received a payment of $53,946.86 by way of bank draft, purchased by Mr. Dziadura. These funds were accepted by the Applicant as partial payment of the amounts owed, but the Applicant stressed that these funds were not in full satisfaction of the amounts outstanding.

27. Accordingly, the Applicant brought the Section 133 referral back on for hearing on Novem­ber 21, 1997. A Summons to Witness was issued in respect of that date, which was also ignored by the Responding Parties, who neither appeared at the hearing of the matter, nor sent a representative to speak of their behalf. Accordingly, the Board issued an award dated November 24, 1997, ordering the corporate Responding Party to pay to the Applicant the amount of $14,005.64. This award was filed with the Ontario Court, General Division, on or about December 12, 1997, thus becoming enforceable as a judgment of that court.

28. On or about December 23, 1997, the Applicant caused to have issued a Notice of Garnish­ment directed to the Canadian Imperial Bank of Commerce. The funds in question were forwarded to the Sheriff of Middlesex County, pursuant to the garnishment. However, by Notice of Proposed Distribution dated March 24, 1998, the Sheriff of Middlesex County advised that no portion of the funds garnisheed [sic] would be paid to the Applicant, since the corporate Responding Party owed funds to Crown creditors, who claimed priority over the Applicant. The Applicant has disputed this priority, but the matter will not be heard until the middle of August The Proposed Distribution Notice indicates that the corporate Responding Party owes a total of approximately $143,500 to various creditors. The Applicant has also been made aware that a construction lien has been registered against the property in which the Responding Parties carry on business in the amount of $55,000.

29. Despite the settlement discussions between the parties, and despite the ongoing efforts of the Applicant to settle the parties' differences by negotiation, rather than by proceeding to the Board, the Responding Parties once again fell into default on their contributions to the various funds, and are once again several months in arrears to the funds, although certain months' contributions have been made. As a result of this further default, the Applicant filed further grievances with the Responding Parties concerning their failure to make the necessary contributions to the funds, and requiring the deposit of cash bonds to make the necessary contributions, pursuant to Article 14 of the collective agreement. A further grievance was filed related to, among other things, the Responding Parties' failure to pay the wage increases required by the collective agreement. The grievances were referred to the Board on or about May 19, 1998.

30. In order to proceed with the grievances referred to in the previous paragraph, the Applicant once again requires production of payroll records and other information available only to the Re­sponding Parties, and not known to the Applicant. A Summons to Witness was issued, requiring the Responding Party Miszczak's attendance at the hearing of this matter. On her own or with the co­operation of others, the Responding Party Miszczak evaded service of the Summons.

NECESSITY OF THE RELIEF SOUGHT

32. As is evident from the foregoing, the Responding Parties have consistently and continuously breached the collective agreement to which they are bound, necessitating excessive and expensive collection proceedings to be initiated by the Applicant. These proceedings ultimately resulted in awards in favour of the Applicant for payment of various monies. Collection of these monies is difficult. The Responding Parties are indebted to several Crown entities. The Responding Parties have also claimed that the Applicant's efforts to collect the funds to which it is entitled are the cause of delays in issuance of paycheques or failure to issue paycheques at all, resulting in further hardship to the Applicant's members. The nature of the Responding Parties' business makes it extremely inefficient to either garnishee the Responding Parties' clients or bank accounts or to lien the projects on which they perform services, since the Responding Parties have a multiplicity of small contracts.

33. The Applicants submit that the Responding Parties' conduct evidences an intention to continue to breach the collective agreement freely and flagrantly, with the knowledge that it is difficult and expensive for the applicant to enforce the collective agreement.