Canadian Union of Public Employees v. Meadowcroft c.o.b. as Livingston Lodge & Nutra 2000, 1998 CanLII 18287

[1998] OLRB REP. MAY/JUNE 430

2754-96-R; 2772-96-R; 3591-96-R; 3548-96-R Canadian Union of Public Employees, Applicant v. Meadowcroft c.o.b. as Livingston Lodge & Nutra 2000, Responding Party; Ontario Nurses Association, Applicant v. Livingston Lodge also known as Meadowcroft also known as Nutra 2000, Responding Part; Canadian Union of Public Employees, Applicant v. Meadowcroft Holdings Inc. c.o.b. as Meadowcroft Health Care Management Group, Meadowcroft Management Holdings Inc., Meadowcroft Group Limited c.o.b. as Meadowcroft Health Care Management Group and c.o.b. as Meadowcroft General Partnership, 1166067 Ontario Limited, George Kuhi, 1107989 Ontario Limited c.o.b. as Nutra 2000, and Livingston Lodge, Responding Parties; Ontario Nurses Association, Applicant v. Meadowcroft Holdings Inc. c.o.b. as Meadowcroft Health Care Management Group, Meadowcroft Management Holdings Inc., Meadowcroft Group Limited c.o.b. as Meadowcroft Health Care Management Group and c.o.b. as Meadowcroft General Partnership, 1166067 Ontario Limited, George Kuhl, 1107989 Ontario Limited c.o.b. as Nutra 2000, and Livingston Lodge, Responding Parties

BEFORE: Pamela Chapman, Vice-Chair.

DECISION OF THE BOARD; May 12, 1998

APPEARANCES: Mark Wright and Dana Ivanochko for Canadian Union of Public Employees; Risa Pancer for Ontario Nurses Association; fry Kleiner and Cathy Tadres for Meadowcroft; Ernest Rovet and Fred Timman for Nutra 2000.

Board files 2754-96-R and 2772-96-R are applications for certification by the Canadian Union of Public Employees ("CUPE") and the Ontario Nurses Association ("ONA") respectively for two separate bargaining units of employees working at Livingston Lodge in Scarborough, Ontario. Representation votes were held in each of the proposed bargaining units on December 9, 1996, and in each case a majority of the ballots cast were cast in favour of the applicant union. However, the parties have been unable to agree on the identity of the employer, and therefore on a final description of the bargaining units.
Board files 3501-96-R and 3548-96-R are applications brought by CUPE and ONA respectively under section 1(4) of the Act, seeking a declaration that the various corporate entities listed above, which will generally be referred to in this decision as "Meadowcroft" and "Nutra 2000", are related employers within the meaning of the Act. The parties agreed that the applications for certification and the related employer proceedings would be heard together.
Certain preliminary issues were considered at a hearing on February 3, 1997, resulting in an interim decision dated February 24, 1997.
Hearings then continued on March 20, 21, 26, 27, April 3, 4, 7, 9, 17, 18, July 24 and 27, 1997. Final argument was heard on July 30 and 31, 1997.

THE FACTS

During the course of this proceeding the Board heard lengthy oral evidence from numerous witnesses and received into evidence hundreds of pages of documents. I will not review the evidence of each witness or attempt to describe each document in this decision. Instead, I will summarize in as concise a fashion as possible the facts which appear to be relevant to the questions of who exercises fundamental control over the employees working at Livingston Lodge, and/or whether or not the responding parties carry on related activities or businesses under common control or direction.
Livingnston Lodge is a retirement home located in Scarborough, Ontario. It provides lodging, food, housekeeping, laundry, 24-hour supervision and various other services, which commonly include nursing care, assistance with the activities of daily living, and social and recreational activities, to elderly residents. It is not a nursing home. It operations are therefore governed by the Landlord and Tenant Act, although it is also under contract with Metro Community Services, Homes for the Aged Division, as a provider of supportive housing.
Until May, 1996, Livingston Lodge was owned by 471374 Ontario Limited. Management of the Lodge was provided by Arbor Living Centres, presumably through a contract with the owners. The on-site administrator was Nadia Tablada.
Dietary staffing and services at the Lodge were provided by 1107989 Ontario Limited which carries on business as Nutra 2000, under contract with Arbor Living Centres. Fred Timman owns and operates Nutra 2000.
On March 19, 1996, Arbor Living Centres provided notice to Fred Timman that their contractual arrangements for the provision of dietary services would be terminated effective April 30, 1996, as Livingston Lodge was under agreement of purchase and sale with closing scheduled for that date.
On April 22, 1996, Arbor Living Centres sent notices to all staff advising them of the sale of Livingston Lodge to "the Meadowcroft Group", with an expected closing date of May 1, 1996. The letter indicated that it was a condition of sale that the new owner would offer employment to the existing staff on no less favourable terms and conditions, and that their employment at the Lodge would therefore continue.
Nadia Tablada, the administrator of the Lodge under Arbor Living Centres, who has continued as the administrator following the sale, testified that she was also advised of the pending sale of the Lodge by George Kuhl, the principal of the Meadowcroft companies, and Lily Sommerville, Senior Vice-President for Operations for the Meadowcroft Group. This occurred during a meeting in March 1996. At this meeting Kuhl and Sommerville advised Tablada that she would be kept on as administrator of Livingston Lodge, and that all of the employees would be retained. She was also told at that time that Nutra 2000 would be taking over the running of the lodge and the employ of the staff.
Corporate documents filed at the hearing and reviewed in evidence by corporate counsel for Meadowcroft Holdings Inc. disclose that the sale of the Lodge closed on May 7th or 8th, 1996. The sale and the structuring of the ownership and management of the Lodge was quite complex, but can be summarized as follows for the purposes of this case:

(i) an Agreement of Purchase and Sale was executed on February 20, 1996, providing for the sale of Livingston Lodge from 471374 Ontario Limited to Meadowcroft Holdings Inc., in trust and without personal liability. The date of closing is specified as April 30, 1996. Article 10.1 of the agreement requires Meadowcroft Holdings Inc. to offer employment on comparable terms and conditions to all of the employees of the Lodge, effective the date of closing;

(ii) Meadowcroft Holdings Inc., by its president, George Kuhl, directed the vendor to pass title to 1166067 Ontario Limited, a corporation which was created to hold that title. The deed was registered to 1166067 Ontario Limited on May 8, 1996;

(iii) on the same day, 1166067 Ontario Limited entered into a Trust Agreement with Livingston Lodge Limited Partnership and Livingston Lodge GP Limited (the "GP" standing for "general partner"). This agreement gives the limited partnership a beneficial interest in the title to Livingston Lodge. The general partner, 1166067 Ontario Limited and the other limited partners which make up the limited partnership, had earlier entered into a Limited Partnership Agreement, dated April 24, 1996. This agreement provides, among other things, that the purpose of the limited partnership is to acquire beneficial title to Livingston Lodge and to own and operate it for the purposes of earning income, and potentially realizing capital appreciation. The general partner controls and has full responsibility for the business of the limited partnership, in accordance with the laws governing limited partnerships. George Kuhl is the president and secretary of the general partner. The limited partnership and the general partner have their principal offices care of the Meadowcroft Group;

(iv) both the limited partnership and the general partner are owned by a group of investors which includes George Kuhl. Kuhl organized the purchase and financing of Livingston Lodge, and put together the group of investors. The George and Vivian Kuhl Family Trust, which is controlled by George Kuhl, owns 50% of the shares in the general partner and the partnership units in the limited partnership (although the family trust granted to Rabbi Morton Green, allegedly as a charitable donation, a participation interest in 10% of its units in the limited partnership). 1166067 Ontario Limited is owned by the Livingston Lodge Limited Partnership; George Kuhl is the sole director, president and secretary of the corporation;

(iv) both the limited partnership and the general partner are owned by a group of investors which includes George Kuhl. Kuhl organized the purchase and financing of Livingston Lodge, and put together the group of investors. The George and Vivian KuhI Family Trust, which is controlled by George Kuhl, owns 50% of the shares in the general partner and the partnership units in the limited partnership (although the family trust granted to Rabbi Morton Green, allegedly as a charitable donation, a participation interest in 10% of its units in the limited partnership). 1166067 Ontario Limited is owned by the Livingston Lodge Limited Partnership; George Kuhl is the sole director, president and secretary of the corporation;

(v) the Livingston Lodge Limited Partnership, by its general partner, entered into a Management Agreement with the Meadowcroft Group Limited ("the Meadowcroft Group") on May 1, 1996. The agreement provides for the appointment of the Meadowcroft Group as manager of Livingston Lodge, with the sole and exclusive right to manage and operate the business for and on behalf of the owner for a five year term. The agreement provides that the Meadowcroft Group may employ on-site managerial, contract consulting and supervisory staff for the Lodge, that such staff shall report directly to the manager, and that staff shall be remunerated from the gross revenue of the business as an operating expense. It also provides, in Article 3.03(a), that all personnel "rendering direct employment services to the Business" are employees of the owner or the contracting employment service. Article 3.03(d) permits the Meadoweroft Group to enter into service contracts for the supply of personnel for the Lodge. Among the duties of the manager listed in the agreement is negotiation with any labour union representing employees at the Lodge, including retaining a labour lawyer to represent the owner in labour negotiations. Other interesting provisions in the agreement relate to the role of George Kuhl and his companies in the management of the business: Article 10.04(b) provides that the contract with the Meadowcroft Group may be terminated on 30 days notice if Kuhl is no longer made available by the Meadowcroft Group to supervise and direct its services under the agreement; and, Article 14.01 provides that the Meadowcroft Group may not assign the agreement except to a corporation which is controlled by Kuhl and subject to him continuing to be actively involved in the day to day affairs of the new manager. George Kuhl signed the Management Agreement for both the limited partnership and the Meadowcroft Group. He is the president and secretary of the Meadoweroft Group Limited, his family trust owns all of the shares in the corporation, and he and his wife are the sole directors.

The net effect of all of these complex corporate arrangements, which are well documented in the numerous exhibits filed with the Board, was that a group of investors including George Kuhl and making up the Livingston Lodge Limited Partnership, assumed ownership of Livingston Lodge early in May 1996. Management of the Lodge was then assigned to the Meadowcroft Group Limited by way of a management agreement. The Meadowcroft Group is in the business of managing retirement homes. It manages operations directly at 17 or 18 homes, and has contractors in place in 6 or 7 other locations. It provides management services to homes owned by other Meadowcroft companies, to homes owned by limited partnerships formed by George Kuhl such as the Livingston Lodge Limited Partnership, and also on contract to unrelated owners.
In the case of Livingston Lodge, the Meadowcroft Group purported to contract out the responsibility for the employment of all of the staff of the Lodge to Fred Timman and Nutra 2000 sometime after the closing in May 1996. Evidence about these arrangements came almost entirely from Fred Timman, as the witnesses who testified on behalf of the various Meadowcroft entities were not involved directly in the making of arrangements with Timman, and had no direct knowledge of the terms of the contract with him.
Timman testified that he was contacted by Lily Sommerville of the Meadowcroft Group sometime in May 1996, to discuss whether or not he was interested in taking over and directing all of the staff at the Lodge. The deal that was offered was that he would proceed to pay staff members through his own payroll system, on a "cost-plus" basis: the Meadoweroft Group would pay to him the payroll costs plus a management fee; all other expenses of the Lodge, such as food and supplies, would be paid directly by the Meadowcroft Group. Timman already had three other of these "total management" contracts at other retirement homes operated by the Meadowcroft Group.
Timman recalled that Sommerville first made this offer in a telephone call, and that they later met to finalize the deal. He testified on direct examination that during this meeting Sommerville told him that the Meadowcroft Group was interested in staff staying on at the Lodge as it was important for the residents to see familiar faces. On cross-examination he claimed that this was never said directly by Sommerville, but that he understood from other things that she said that Meadowcroft wanted the staff to be retained, which he too thought was a good idea. He agreed that it was clear to him that the Meadowcroft Group was concerned that there be a smooth transition, and that the welfare of the residents not suffer.
Timman also testified that Sommerville provided to him at this meeting a budget, which he said was "in staff hours only at that time". He explained that this meant that he had no financial picture of the operations of the Lodge, but knew the number of staff hours which were being worked by the persons in the various classifications.
Anned with this information, Timman entered into an oral contract with the Meadowcroft Group for Nutra 2000 to employ all of the staff of the Lodge, including the administrator Nadia Tablada, in the way described above. The contract was for a one year trial period. The fee paid to Timman was approximately $900 per month; he could not identify the precise figure as what was negotiated was an increase in the fee paid to him for the management of all four facilities to $3000.00 per month.
There does not appear to have been any announcement to the staff that they were now employed by Nutra 2000, and no explanation of the management and ownership structure was ever provided. All of the staff were continued in employment at the same pay rates they had previously received, including Tablada, whose salary Timman described as "set" prior to to the takeover. Timman testified that his deal with the Meadoweroft Group was effective June 17, 1996, and no witness from the Meadowcroft Group testified that this assertion was incorrect. There was therefore no explanation provided as to who exactly was in charge of the facility, and who paid the staff, during the period between May 8 and June 17, 1996. It would appear from the documents filed, however, that the Meadowcroft Group had legal control of the workplace during that period, although the terms of its management contract provide that the owner, the Livingston Lodge Limited Partnership, was the legal employer of the employees. Interestingly, operations at the Lodge seem to have continued on as usual during this period, with Nadia Tablada running it on a day-to-day basis, as she had before the change in ownership, and continues to do under Fred Timman and Nutra 2000.
Both Timman and Tablada described in their evidence the day-to-day running of the Lodge, and there was no real dispute that Tablada, as the only on-site manager, essentially runs the operation. Timman has a home office and a mailing address, maintains no office at the Lodge, and visits all of the various facilities where he (through the guise of three different companies) provides management services on an irregular basis through the week. Tablada and the other managers at the facility, which include a Food Services Manager and Director of Nursing, have full authority to make decisions about most matters affecting the Lodge, including hiring and firing staff other than managerial staff, about which Timman is consulted.
Timman was asked whether or not he had the discretion to terminate Tablada, and admitted that he would have to "make a case" for her dismissal to the Meadoweroft Group, and explain his reasons. With respect to other hirings and firings, however, he claimed that the Meadowcroft Group has no involvement. Only one employee, the Food Services Manager, has been terminated since the sale of the Lodge, and the Board heard evidence about the making of that decision. Timman introduced the incident involving the Food Services Manager in the context of questions about the extent to which he has any discretion over the budgets at the Lodge. He said that Debbie Souza, the second in command in the finance department at the Meadowcroft Group, called him to say that food costs were "a little out of whack", and that he investigated this complaint, and subsequently terminated the Food Services Manager. When questioned further about this incident, Timman said that there were a number of other reasons for his and Tablada's decision to terminate the employee. Timman later testified that the Meadowcroft Group would never direct him to fire someone, but that when a complaint comes from Meadowcroft about something that affects revenues he can "read between the lines" and would "know I have to do something".
The employee payroll process was described in some detail. Employees enter their hours on time sheets, and these hours are tabulated by the office manager at Livingston Lodge. These hours are then transferred by modem to Timman's computer. He compares them to the budget of hours provided to him by the Meadowcroft Group, resolves any inconsistencies through contact with the Lodge, and then processes the payroll using payroll software. This is conveyed to the Toronto Dominion Bank's payroll service, which makes up a payroll register showing all of the cheques which are to be issued. Using this information, Timman prepares an invoice for the total amount of the payroll, and submits this to the Meadowcroft Group, which issues him a cheque. Not until he deposits this cheque to cover the amount of the payroll does the TD payroll service issue cheques made out to the employees, which are then delivered to the Lodge for distribution. All other expenses at the Lodge are paid directly by the Meadowcroft Group; bills for food, supplies and services are sent to them to be paid.
Timman was examined about the extent of his discretion to change the complement of staff at the Lodge or to alter their pay or benefits. It was clear from his evidence that he cannot increase the total complement of staff if this increases the number of hours being worked, without the approval of the Meadowcroft Group. Similarly, he cannot give an increase in pay or benefits if it increases the total amount of the payroll; the only way he could give an employee a raise without the consent of the Meadoweroft Group would be to reduce the amount of money paid to other employees, or pay more per hour for fewer hours.
Much of the remaining evidence given by Timman, Tablada, and Marlene Toons, the only witness from the Meadowcroft Group who has had any direct dealings with Livingston Lodge, focused on the nature and extent of the contacts between management and staff at the Lodge, and management and staff at the Meadowcroft Group. In the interests of brevity, these contacts can be summarized as follows:

(i) Daily Investor Reports: Tablada, or the nurse-in-charge in her absence, is responsible for the faxing of reports called "Investor Reports" to the offices of the Meadowcroft Group, twice daily on weekdays and once a day on weekends. The Investors Report is done on a form headed "Investors Report - Retirement Home Division" and is used at all of the facilities in which George Kuhl and/or the Meadowcroft Group has an interest. The report requires information on: the census, both actual and expected; the day's bank deposit and balance; "marketing", including tours and admissions; planned discharges; incidents, accidents, hospital admissions or discharges; repairs, maintenance and/or emergencies not budgeted for and over $100.00; family and resident feedback; any use of nursing agencies; visits or inspections from government or other agencies; follow-up action on past due receivables; and "additional comments". There was lengthy commentary by the various witnesses about the purpose and significance of the Investors Reports, which I will not review at any length. Suffice it to say that the reports provide regular (twice daily) information to the Meadowcroft Group about how Livingston Lodge is operating, and would certainly draw to its attention any occurrence which was out of the ordinary, or any development at the Lodge which was likely to impact on its success, such as the departure of, or complaints from, residents. The reports also permit the Meadowcroft Group to keep a close eye on the spending of any discretionary funds, in addition to its control over the main budget items such as food, personnel and other supplies. It was not entirely clear to whom the reports are provided, but certainly George Kuhl and other key members of his management team, including Marlene Toons, receive copies;

(ii) Weekly Inspection Reports/Monthly Inspections: Tablada also completes a "Manager's Weekly Inspection Report", which is faxed weekly to the Meadoweroft Group. This form requires her to note any deficiencies apparent on a floor-by-floor physical inspection of the premises, such as doors needing to be cleaned, areas to be vacuumed or swept, or minor repairs required. She testified that she usually takes steps to remedy any such deficiencies as soon as she observes them, and is therefore able to advise the Meadowcroft Group almost simultaneously that the problems have been resolved. Marlene Toons also attends at the Lodge every month and does her own physical inspection of the premises. Her observations are noted by Tablada, and are also included in a report which she faxes to the Meadowcroft Group, leaving a copy at the Lodge so that any action she requests can be achieved immediately. Deficiencies observed by either Tablada or Toons are dealt with immediately by Tablada giving direction to the staff; Timman is provided with copies of the reports from the Meadowcroft Group but he expects Tablada to go ahead and deal with any problems without further direction. Similarly, Tablada generally deals with other directions received from the Meadowcroft Group from time to time, usually by fax, providing a copy to Timman but not waiting for his approval. Actions taken to remedy any deficiencies are confirmed in writing to the Meadowcroft Group;

(iii) Maintenance: Bruce Carpenter, who did not testify, is a maintenance contractor retained by the Meadowcroft Group to do work, and retain contractors to do work, at various of its facilities. The on-site maintenance employee at Livingston Lodge is required to contact him if any major repairs are needed, in order that Carpenter can retain an appropriate contractor, do the work himself, or, presumably, authorize the employee to do the work. Carpenter did not testify, and no-one else who testified seemed to have a very clear understanding of the nature of his retainer, or to what extent the Lodge is required to use his services. However, it was not disputed that he does work from time to time at the Lodge, or that he is consulted when repairs are required;

(iv) Marketing: The Meadowcroft Group assigned one of its marketing employees, Sarah Howe, responsibility for finding new residents for the Lodge and "signing them up". Previously, this marketing was done by Tablada and the Director of Care, and it is still done to some extent by Tablada as she is at the Lodge every day, while Howe attends irregularly when she has tours or meetings scheduled. This means that both Tablada and Howe have regular contact with discharge planners at local hospitals and with other community agencies, and do tours of the facility for potential residents and their families, although Tablada does not have as much regular involvement in these activities as Howe. When Howe attends at the facility to do tours she may have some contact with staff, although she testified that she is careful to direct any comments she may have about the condition of the premises to Tablada, and that she never directs staff. Howe is an R.N., and she does the initial assessment of residents, identifying what level of care is required and what services they request, including what nursing care will be needed;

(v) Money: The movement of funds from the Meadowcroft Group is referenced above in the description of the payroll process. There is also regular contact between the office staff and Tablada, and the accounting personnel at the Meadowcroft Group, as invoices are sent for payment, discretionary expenses are approved, etc.;

(vi) Other attendances by Meadowcroft staff: George Kuhl and his son both attended at the Lodge fairly regularly during the summer and fall of 1996, when the Lodge was being renovated. Michael Kuhi, who is a full-time student, was responsible for supervising the contractors who were working on the job, and George Kuhl attended on occasion to observe the progress of the renovation. They sometimes left directions for the contractors, which might be left with Tablada. As will be discussed below, George Kuhl did not testify about his reasons for attending at the facility, or his conduct while there, but several other witnesses claimed that he was not involved in the direction of staff. The Vice-president of marketing for the Meadowcroft Group, and other staff from their offices, also attended at an open house held when the renovations were complete. Other than that, and the attendances detailed above, staff from the Meadowcroft Group do not attend regularly at the Lodge and limit their communications to phone and fax.

There was little evidence called about the other entities named as responding parties to the applications. Kathy Tadres, the Director of Human Resources and Labour Relations for the Meadowcroft Group, testified that she had been advised that Meadowcroft Management Holdings Inc. is the parent company of Meadowcroft Holdings Inc.. She had no other knowledge of its activities or its relationship to the other corporate entities or to Livingston Lodge. Corporate counsel confirmed that Meadowcroft Management Holdings Inc. holds all the shares in Meadowcroft Holdings Inc.. Both Tadres and corporate counsel for Meadowcroft Holdings Inc. testified that they were unaware of any company operated by George Kuhl carrying on business as the Meadowcroft Health Care Management Group. Tadres said that she believed that the Meadowcroft General Partnership might exist and undertook to inquire and advise as to its status, but no further evidence concerning this entity was entered.
George Kuhl, who is named personally as a responding party, did not testify, but evidence was entered in documentary form, and confirmed in testimony by his corporate counsel, that established him as the principal in the Meadowcroft Group Limited and 1166067 Ontario Limited, which were named as responding parties, as well as the Livingston Lodge Limited Partnership and General Partner. His son and Nadia Tablada testified second-hand about the extent of his involvement in the day-to-day running of the retirement home.

THE DECISION

Given the length of this decision I will not canvass in detail the arguments made by counsel but will instead deal with their submissions briefly while setting out my factual findings and legal conclusions.
The four applications before me raise two separate issues, argued in the alternative:

(a) who is the employer of the employees in the two proposed bargaining units, Nutra 2000 or one or more of the Meadowcroft entities?

(b) should Nutra 2000 and one or more of the various Meadowcroft entities be declared to constitute a single employer for the purposes of the Act?

Counsel for the applicant proposed that the Board deal first and foremost with the issue of whether or not the named entities are related employers under common control and direction within the meaning of section 1(4) of the Act. In some of the cases submitted by the parties the Board has first considered which party exercises fundamental control over the employees and thereby determined who is the employer, without considering the need for a related employer declaration (see for example Kennedy Lodge Inc., [1984] OLRB Rep. July 931 ("Kennedy Lodge")). However, in Brantwood Manor Nursing Home Limited, [1986] OLRB Rep. Jan. 9 ("Brantwood Manor") the Board first addressed the questions relating to the application of section 1(4), making the following comments which seem applicable to the present case:
When the application of subsection 1(4) is in issue, the Board is concerned with the definition or potential redefinition of a continuing collective bargaining relationship, not with the assignment of vicarious liability for an occasion of negligence, nor solely with the interpretation and application of the language of a collective agreement. If there is a serious debate over which of two entities is the employer of persons who are conceded to be someone's employees, that will be because some of the important attributes of an employer can be seen in each of them. When each of the entities appear to have a real stake in and influence on matters of relevance to the labour relations of employees in a bargaining unit, then even from their perspective it may make sense to treat them both as the employer for labour relations purposes than to choose between them and designate one as employer for labour relations purposes to the exclusion of the other, who might for other purposes be treated as employer. The possibility that a choice is unnecessary or inappropriate should be considered before the choice is made.
Counsel for the other parties did not make specific submissions about this issue, but they each directed their arguments almost exclusively to the application of section 1(4). In these circumstances, and for the reasons offered in Brantwood Manor, supra, I will will proceed first to consider whether or not the requirements for a declaration under section 1(4) have been made out, and, if so, whether in the circumstances of this case the Board should grant a declaration under that section.
Section 1(4) of the Act provides as follows:
. . . .

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

There can be no dispute that more than one entity is involved in the operation of Livingston Lodge, and the parties did not seriously dispute that they are engaged in related activities or businesses. The evidence entered by the Meadowcroft entities, who offered a joint defence, reveals clearly that the Meadowcroft Group Limited, Meadowcroft Holdings Inc., 1166067 Ontario Limited and George Kuhl were all involved in the acquisition of and/or operation of the retirement home, and all of these entities are under the control of George Kuhi. Indeed, it was not seriously disputed that these Meadowcroft companies carry on their activities under his common control and direction.
The heart of the dispute between the parties is the claim by the unions that all of the Meadowcroft entities named carry on related activities or businesses with Nutra 2000, and that these activities are carried on under common control and direction. The evidence established clearly that the activities of Meadowcroft and Nutra 2000 in respect of Livingston Lodge are related within the meaning of the Act. The general theory of the case which was advanced by counsel for Meadowcroft was that his clients run "the property", while Nutra 2000 runs "the people". These two elements of the business are nonetheless inextricably related, as the value of the property lies in its capacity to earn income through its operations as a retirement home. The documents relating to the limited partnership and general partner establish clearly that the goal of the investors is to realize profit through the operation of Livingston Lodge and possible as well through its eventual sale, at which time the value of the property will be impacted by its success as a retirement home.
Witness after witness confirmed this important connection between the activities of the owners and those of Nutra 2000, the alleged employer of the persons who operate the retirement home on a day-to-day basis: "if you keep the residents happy, you keep the census up, and keep the profits coming". It cannot be disputed that the efforts of the staff who prepare and serve meals, clean the premises, provide nursing care and other support in the activities of daily living, and plan and execute various activities for the residents, are critical in attracting and maintaining a satisfied clientele for the Lodge. At the same time, the building must be well-maintained and outfitted, an element of the operation for which the Meadoweroft Group clearly retains responsibility, and the other Meadoweroft entities were involved in the funding and purchase of the property itself. On the facts of this case I have no difficulty concluding that Nutra 2000, the Meadowcroft Group Limited, 1166067 Ontario Limited, Meadowcroft Holdings Inc. and George Kuhl are engaged in related activities or businesses.

Common control or direction

This integration of goals and activities also goes to establish that the activities of these entities are under common control and direction, the element of section 1(4) which was clearly disputed by the responding parties. In Diamond Taxicab Association (Toronto) Limited, [1995] OLRB Rep. June 753 ("Diamond Taxicab"), the Board observes at paragraph 59 that common direction or control is not limited to common ownership or principals, and may be applied in sub-contracting situations. The Board goes on to note that:

“…..Even where the corporate vehicles may have separate spheres of control in which they are each their own masters, the functional interdependence of separately controlled activities may lead to a conclusion of common control or direction over the activities as a whole."

The Board makes a similar reference to functional and economic integration in J.H. Normick Inc., [1979] OLRB Rep. Dec. 1176 at paragraph 21.

This is a case which raises squarely the issue of sub-contracting which has been considered in previous Board decisions under section 1(4) of the Act, although there are more layers of delegation here than in many of the earlier cases. Sub-contracting cases require a different analysis of the issues under section 1(4) than many other cases as there is generally no allegation of common ownership or intersecting corporate structures. Instead, one corporate entity chooses to delegate some part of its operations to a separate company or person, often including the employment of persons performing work in those operations.
Where sub-contracting attracts an application for a related employer declaration the Board is not concerned with whether or not the sub-contracting is permissible; that is an issue which may arise in another forum if some legal restriction on sub-contracts such as a contractual prohibition is in existence, but which is not part of the question for the Board. Instead the Board is concerned with what legal and labour relations consequences flow from such a "delegation" if the activities in which persons are employed by the sub-contractor remain under common control or direction. This point is made by the Board at paragraph 113 of the decision in Brantwood Manor.
An important consideration in the sub-contracting cases is what part of the operations of the original company is contracted out. Activities which are collateral or peripheral to the company's business can be relinquished more easily than the core activity of a business, and are therefore much less likely to be perceived as remaining under common control or direction. However, where the core activity of a business is sub-contracted it is difficult to perceive any separation between the purposes and functions of the two entities. These points are made in Kennedy Lodge Inc., [1984] OLRB Rep. July 931 at paragraph 56.
In the present case the owners of Livingston Lodge have contracted management of its operations to the Meadowcroft Group, a company which is in the business of managing retirement homes and which has close corporate ties with the owners through George Kuhl, who is the principal investor and the directing mind of all of the Meadowcroft companies. The Meadowcroft Group has in turn purported to contract with Nutra 2000 for the management of all of the staff at the retirement home, including the administrator who is the on-site manager of all of its operations. This wholesale sub-contracting is on a much broader scale than in any of the cases cited by the parties, except perhaps J.H. Normick, supra, where the company contracted all of its operations, although only in a particular area, to another operator.
In both Kennedy Lodge, supra, and Brantwood Manor, supra, the Board focused on the provision of nursing care to the residents of these nursing homes as being the core activity. In the present case, counsel for Meadowcroft argued that nursing could not be the core activity of the enterprise as Livingston Lodge is a retirement home and not a nursing home, and is therefore covered by different legislation which does not require the provision of "active nursing care". Whatever the legislative mandate, Livingston Lodge does advertise and appears to provide to its residents "nursing", "nursing supervision", "medication administration", "exemplary health care" and "professional 24-hour health care". In any event, the terms of its leases with residents include the provision of meals, housekeeping, laundry, recreational and social activities and assistance with the activities of daily living including dressing, personal hygiene and bathing. All of these activities, and the regular maintenance of the facility, are alleged to have been sub-contracted to Nutra 2000. In these circumstances, it must be said that the core activities of the retirement home have been contracted out.
In determining the extent to which Meadowcroft and/or the owners of Livingston Lodge have maintained control over the operations of the retirement home, particularly around labour relations matters, I have carefully reviewed the facts detailed above. All counsel directed significant argument to the question of whether or not the facts established that Meadowcroft dictated to Nutra 2000 the complement of staff which must be hired and the terms and conditions of their employment. On the facts outlined above, I have no difficulty in concluding that it did. While Fred Timman attempted to obfuscate on this point, his testimony points inevitably to the conclusion that he inherited a full complement of staff when he entered into the contract with Meadowcroft. The evidence of Tablada that she was told long before Timman made the deal that she and all of the staff would be retained is also significant, as is the fact that Kuhl and Sommerville met with her directly. Not surprisingly, they seem to have wanted to "check out" the person who would be running the operation on a day-to-day basis. As in J.H. Normick, supra, Nutra 2000 was presented with a "ready-made labour force" when it accepted the contract with Meadowcroft.
Counsel for the responding parties also asserted that Timman had some significant discretion in setting the terms and conditions of employment of his new employees, despite the strict control Meadowcroft retains over the budget. Interestingly, Timman testified that the first "budget" he was given by Meadowcroft was in hours; with the staff, their classifications, and the hours they were to work fixed by Meadowcroft it is difficult to see where Nutra 2000 could possibly have much influence over the terms of their employment. Even after Timman began to work with a budget set in dollars, the most flexibility he could claim was the ability to give more of the salary dollars to a particular person, by reducing the amount paid to another, or by reducing hours.
Timman has the power to hire, fire and discipline, and he schedules employees within the limitations established by the budget set by Meadowcroft, but he essentially delegates these functions to Tablada and the other managers, except on the few occasions when managerial personnel are involved. His power to hire or fire is restricted by the complement established by Meadowcroft; if changes in the demands made by residents results in the need for additional staffing, for example, he needs to make a case for such an increase to Meadoweroft. His authority is really no different than that of a senior manager, in the same way that the Board in J.H. Normick, supra concluded at paragraph 20 that the sub-contractor's ability to hire replacements put him on no higher plane than that of a Normick manager.
There was some testimony about Timman having put in place his own policies and procedures, but no specifics were provided other than compliance with the minimum standards established by the Employment Standards Act, It certainly cannot be said that he has put his "imprint" on the workplace in any significant way; Tablada runs the operation day-to-day in essentially the same way she did when it was run by Arbor Living Centres, other than the changes in marketing strategy implemented by Meadowcroft and the new requirement to report to them on an ongoing basis.
The daily, weekly and monthly on-site reporting to Meadowcroft was characterized by its counsel as nothing more than the provision of information to the investors, in order that they are assured that their interests in the property are being protected. As noted above, their interests were identified as maintaining a high census and thereby making a profit. Surely, if Meadowcroft is charged with protecting their interests, as the management agreement seems clearly to provide, there must be some purpose in collecting this information; there must be some intention to take some action if conditions at the home are inconsistent with maintaining a high census and making money. The interventions that have so far been common have related to the routine maintenance of the physical plant; no doubt it is hard to recruit residents if a facility is in poor repair. I have no doubt, however, that the questions on the reports that relate to resident care such as complaints from residents, reasons for their departure, and unusual occurrences, are there for a reason and would result in some direction from Meadowcroft if they were concerned about the possible impact of any of these things upon income for the facility.
It is also undeniable that Meadowcroft's control over the budget has, and will continue to have, an impact on Timman's dealings with "his" staff in areas other than the setting of terms of employment. The termination of the food manager was a concrete example of the nexus between Meadowcroft's interests and Timman's obligations as they impact on labour relations matters.
Counsel for Meadowcroft asserted that all of these examples of control over the operations of Livingston Lodge by his client were no more than commercial control over its contract with Nutra 2000. He analogized the arrangements between the parties in the present case to those described in the City of Stralford, [1985] OLRB Rep. June 923, and in Caressant Care Nursing Home of Canada Limited, [1985] OLRB Rep. Jan. 50. The distinctions between the facts in those two cases and those in the present matter are too numerous to enumerate. In both instances the Board concluded that the control over the operations of the sub-contractor retained under the terms of the contract with the original company was no more than any customer could expect to retain in entering into a contract for the provision of services. I am satisfied that in the present case the control exercised by Meadowcroft goes far beyond this notion of "commercial control".
Other elements of the contractual arrangements between the parties are instructive in this regard. The absence of any written agreement, given the significance of the responsibilities allegedly delegated to Nutra 2000, is troubling, particularly in light of the detailed management agreement negotiated by Meadowcroft with the owners of the property. Either the witness was being deliberately vague, or the oral agreement which Timman testified about seems to I~iave dealt with almost none of the arrangements one would expect would be required in order to structure such a relationship, and as noted above no-one who was involved in reaching the agreement on behalf of Meadowcroft testified in these proceedings. Counsel for the union suggested that I should construe this surprising absence of detailed contractual terms and the failure to reduce anything to writing as a deliberate attempt by the parties to avoid the careful scrutiny of their arrangements undertaken by the Board in Brantwood Manor, supra. Whatever the reason for the apparently casual nature of the arrangements between the responding parties, the lack of detailed terms certainly does not immunize their arrangements from examination.
In J.H. Normick, supra, the Board considered the fact that either party could terminate their agreement on 30 days notice and stated that "...(h)aving regard to the economic and organization imbalance between Normick Inc. and Mr. Turgeon, the power of Normick to terminate on short notice is a compelling indicia of economic control". Counsel for the responding parties both argued that Timman was not in an inferior position in the bargain struck with Meadowcroft in the same way that Turgeon was overpowered by Normick, but I see important analogies in their situations. Both were minor players in the same business as the company sub-contracting to them, and both were economically dependent on their client to a large degree (recall that all of Timman's "total service" contracts are at Meadowcroft owned or managed properties).
Both the quantum of the remuneration paid to Timman for his services as the purported employer of the employees of Livingston Lodge, and the financial controls maintained by Meadowcroft mean that Timman assumes no risks, but also has no opportunity to increase his profit through his involvement at Livingston Lodge. It also cannot be said the he "bears the burden of remuneration" of the employees, a factor which is considered by the Board in determining who is the employer (see York Condominium Corporation No. 77, [1977] OLRB Rep. Oct. 642). Timman's involvement in the payment of employees is nothing more than that of a paymaster, as he doesn't advance any of his own funds to the employees at any time; indeed, he does nothing more than direct Meadowcroft's funds to the employees with the assistance of a payroll service.
Having regard to all of the elements of the relationship between the responding parties reviewed above, and to the facts about the involvement of Meadowcroft at the retirement home which were disclosed by the evidence, I have concluded that Livingston Lodge is under the common control and direction of Meadoweroft and Nutra 2000. Accordingly, all of the prerequisites for a section 1(4) declaration are present and I must decide whether it is appropriate in the circumstances of this case to exercise the Board's discretion to grant the relief requested by the unions.

Exercise of discretion

The Board has stated in numerous cases that it will exercise its discretion to make a declaration under section 1(4) where it finds the presence of a mischief of a sort to which the enactment of the section was directed. In making this determination, the Board will consider many of the same facts as are relevant to the issues reviewed above, as the questions are closely related. In fact, some Board decisions do not distinguish between them.
In Etobicoke Public Library Board, [1989] OLRB Rep. Sept. 935, which was quoted with approval in Diamond Taxicab, supra, at paragraph 56, the Board said that section 1(4) is designed:

(a) to preserve or protect from artificial erosion the bargaining rights of the union;

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

The Board in Diamond Taxicab, supra went on to summarize the goals of the section as follows:

The Board's caselaw reflects the fact that section 1(4) provides the flexibility to make collective bargaining viable in the face of a spectrum of commercial and organizational arrangements through which business activities are carried on and work is performed. Among other things, it may stabilize the labour relationship by facilitating bargaining rights which flow through sequential or contemporaneous corporate structures. In some circumstances, it may prevent negotiations from turning into an elaborate fiction by bringing the real locus of power into the appropriate forum. Where employer functions are distributed among different legal entities, section 1(4) may permit their assembly so that meaningful collective bargaining can be carried on.

Counsel for the unions argued that there is a need in the present case for the Board to issue a declaration under section 1(4) to ensure that these goals are met: that viable bargaining structures are created at the outset of these collective bargaining relationships which involve the entities with real economic power over the employees.
The evidence establishes clearly that on its own Nutra 2000 would have virtually no power to bargain with either union over terms and conditions of employment, given the strict controls imposed by Meadowcroft over many aspects of the workplace, and in particular over the finances. Timman testified that he could go to Meadowcroft with bargaining proposals to seek a change in the budget, only confirming who has the real economic power over the employees at Livingston Lodge. This would be much like requiring the unions to bargain with a manager who had no authority to bind the employer, and who could be terminated at any time if he were to pass on a proposal that did not meet with favour, a bargaining structure which cannot be considered viable or on a sound footing.
The Board considered a similar situation in J.H. Normick, supra, and stated at paragraph 22 that:

22 …….In this case the relationship between Turgeon and Normick Inc. is such that if the Board does not exercise its discretion in favour of issuing a section 1(4) declaration the employer party to the employment relationship (if one exists) and to the collective bargaining structure which will result if the union is certified, will be the employer in name only. If the Board does not issue a declaration, the entity possessing both economic and de facto operational control would not have a legal relationship within the ambit of The Labour Relations Act with those employees who are the subject of its control. The potential labour relations weakness of this result is self-evident. Having regard to all of the foregoing the Board is of the view that it should made a section 1(4) declaration in this case in order to reflect in law the economic and organization reality and thereby put the labour relations of these related activities on a sound footing....

Counsel for the responding parties argued that there is no need for a declaration in this case, as Nutra 2000 stands ready to assume its responsibilities as the employer. Counsel for Meadowcroft also asserted that the union's emphasis on the need to have the real locus of economic power at the bargaining table would in fact result in an improper use of the Board's powers, as it is nothing more than an attempt to reach a "deep pocket". It is certainly relevant to both the finding that the enterprise is under common control and direction and to the Board's exercise of discretion that Timman has absolutely no budgetary discretion and theoretically only his $900 per month fee to allocate to any collective bargaining concessions which might result in some cost. However, the Board would not have found that common control existed, and would not contemplate making a declaration, if Nutra 2000 was truly an independent operation which just happened to generate little profit. Instead, the facts in this case disclose that Nutra 2000 is little more than a payroll service, or a manager who happens to be incorporated, and therefore has no real economic power over the employees and little contribution, financial or otherwise, to make in bargaining, no matter how willing Timman may be to come to the table.
In Kennedy Lodge, supra, the Board also considered the fact that the sole purpose of the sub-contract was to avoid unionization in determining to issue a declaration (see paragraph 57). Counsel for Meadowcroft argued that the Board in this case should take into account that no such anti-union animus has been established.
It is not a prerequisite for the exercise of the Board's discretion under section 1(4) that anti-union animus be found. At the same time, it is also not clear that Meadowcroft did have a legitimate purpose, other than to avoid responsibility as the employer, in collective bargaining or simply under provincial law, in deciding to delegate the employment function to Nutra 2000. The complex corporate structures established around the sale and the holding of the property were explained by corporate counsel as having been driven by tax considerations. The decision by the investor's group to retain the Meadowcroft Group to manage the retirement home is also transparent, as the owners were clearly not in the business of running such homes and would require management expertise. But given that the Meadowcroft Group is in the business of managing retirement homes, and having regard to the provisions of the agreement between Meadowcroft and the investors which emphasize the importance of George Kuhl's involvement in the day-to-day running of the home, the decision to then sub-contract to Nutra 2000 is surprising.
The evidence on this issue was wholly unsatisfactory. Kathy Tadres, the Meadowcroft Group's manager of human resources, was not in the employ of the company when the decision to retain Nutra 2000 was made, but she speculated that the decision was likely motivated by a lack of resources within the Meadowcroft Group to manage the facility. She testified that the Meadowcroft Group runs without a sub-contractor approximately 17 or 18 retirement homes, and manages with a contractor in place a further 6 or 7. No more detail was provided as to how Meadowcroft decides which facility to set up in which way, and no-one who was actually involved in the decision to retain Timman testified. During argument I asked counsel for Meadowcroft why the Meadowcroft Group would enter into a management contract like the one entered into evidence, which required Kuhl's involvement and strictly limited the ability to assign the agreement, if it did not have the resources to fulfill its terms, but did not get a satisfactory answer.
Given that Tablada was maintained as the administrator of the home, along with all the other staff including managers, and that other expertise, such as marketing, maintenance consulting and budgeting, is provided directly by the Meadowcroft Group, it is not clear what business benefit is derived from the arrangement with Nutra 2000, other than distancing the Meadowcroft entities and the investors from employment obligations. I remain unsatisfied with the evidence about the purpose of the transfer to Timman, but I can certainly conclude on the facts which were heard that this is not a case like many where the Board has concluded that the employer was not really in the business of doing the particular discrete, collateral activity that was contracted out, and/or the employer had a good commercml reason to contract out the work like saving money. In the absence of adequate testimony on these issues, I am prepared to draw an adverse inference on the issue of the purpose of the sub-contracting. On its own, these concerns would not lead me to grant a declaration, but at the same time counsel for the employer cannot rely upon the absence of any improper motive to support its position that a declaration should not issue.
For all of these reasons, I am satisfied that the Board should issue a declaration under section 1(4) in order to ensure that collective bargaining at Livingston Lodge has a stable foundation, and that the bargaining agents are able to engage in direct dealings with the entity with real economic power over the employees in the bargaining units.

Scope of the declaration

Given the number of responding parties named in the applications, and the numerous other corporate entities which were the subject of the evidence, it is necessary to give some careful consideration to the scope of the declaration to be granted.
I have no difficulty in concluding that 1107989 Ontario Limited c.o.b. as Nutra 2000 and the Meadowcroft Group Limited should be declared one employer for the purposes of the Act. As noted above, the evidence before me also establishes that several of the Meadowcroft entities, including Meadowcroft Holdings Inc. and 1166067 Ontario Limited, are under the common control and direction of George Kuhl who is also the principal of the Meadowcroft Group Limited. There may be some purpose in declaring 1166067 Ontario Limited to be a related employer to the Meadowcroft Group and Nutra 2000, as this corporation, while otherwise an empty shell, does retain the legal title to Livingston Lodge. However, I can see no reason to make a declaration with respect to Meadowcroft Holdings Inc. and Meadowcroft Management Holdings Inc.; the former was involved briefly in the acquisition of Livingston Lodge but the agreement of purchase and sale was transfered to 1166067 Ontario Limited before the deal was closed, and the latter is only a holding company.
The applications refer to a number of other business styles which one or more of these corporate entities are alleged to use, but about which no evidence was called other than the statements of corporate counsel and Tadres that they were unaware of a business called "Meadowcroft Health Care Management Group". There is no need to made any particular declarations respecting these business styles as they are caught by the rulings with respect to the actual corporate entities described in paragraph 65.
As described in paragraph 12, the actual owners of Livingston Lodge are a group of investors who have formed a limited partnership, the Livingston Lodge Limited Partnership, which has as its general partner a corporation called Livingston Lodge GP Limited. George Kuhl is the main investor in the group, and is the principal of the limited partnership, the general partner and of 1166067 Ontario Limited which holds legal title. These details about the complex corporate structure involved in the acquisition and holding of the property were not disclosed until, at the earliest, March 24, 1997, when counsel for Meadowcroft wrote to counsel for CUPE, with copies to the other parties, outlining the basic elements of the transactions and arrangements described in paragraph 12 of this decision.

Some of the corporate documents which were ultimately produced were provided to counsel at that time, others not until much later in the hearing.

The limited partnership and its general partner are not responding parties in this matter. After counsel to CUPE and ONA learned that they were in fact the owners of the property, through disclosure of documents and also examination of the corporate counsel called by Meadowcroft, there was some discussion about whether or not they should be permitted to add them as parties in this proceeding, or whether we should adjourn in order to permit the filing of further applications under section 1(4) of the Act. Either route would have required the parties to relitigate significant amounts of evidence already called.
Union counsel ultimately informed the Board and the other parties that it was not their intention at that time to initiate any proceedings against the limited partnership and general partner, and that they would instead proceed with the litigation already commenced, in the hopes that whatever remedy might be provided by the Board in this matter would suffice. In these circumstances, there can be no declaration against the Livingston Lodge Limited Partnership or Livingston Lodge G.P. Limited, despite the factual findings reviewed above.
The remaining responding party is George Kuhl. The unions argued that a declaration should issue establishing Kuhl as a related employer pursuant to the Act. They asked the Board to draw a negative inference from his failure to testify, and argued that as the only constant and presumably permanent element in the entire complex of corporate entities his inclusion is required in order to ensure a stable foundation for bargaining.
I have carefully considered the unions' request that Kuhl be declared to be one employer with the Meadowcroft Group, 1166067 Ontario Limited and Nutra 2000, but have decided not to issue a declaration which includes him as an individual (certainly he will be affected by the declarations in any event as principal of both of the included Meadowcroft entities). As noted above, I have concluded on the evidence put before me that all of the Meadowcroft entities about which evidence was heard (and the Livingston Lodge Limited Partnership and Livingston Lodge G.P. Limited) are under his control and direction. However, none of the activities relating to the operation of Livingston Lodge are carried on by Kuhl as a sole proprietor; in each case he has established a corporate vehicle through which to conduct his business.
Section 1(4) clearly contemplates a finding that an individual carries on related activities or businesses under common control or direction with other individuals or corporations, and the issuing of a declaration against such an individual. It is not clear, however, when the Board might issue a declaration against the principal of a company, either in addition to or instead of a declaration against the corporate entity he or she directs. No party cited and I am not aware of a case where such a declaration has been made. In any event, presuming without finding that the Board has the power to make a declaration under section 1(4) against an individual acting through a corporation, I can see no reason in the present case why a declaration against Kuhl personally will further the goals of the section.
The corporate documents filed establish that the Meadowcroft Group has full authority to bargain collectively on behalf of the owners, to obtain labour relations advice, and to take all other steps required in order to manage the retirement home. The agreement between the owners and the Meadowcroft Group cannot be terminated at will, and it can be assigned only if George Kuhl remains intimately involved in the day-to-day running of the home. With the Meadoweroft Group Limited found to be the employer of the employees at Livingston Lodge (together with Nutra 2000 and the numbered company which holds the title) I am satisfied that there is sufficient stability on the employer side for bargaining to proceed. Furthermore, any future changes in the management structure utilized by the owners should be able to be followed with relative ease given that George Kuhl is the principal of two of the entities which have been found to be related employers involved in the running of Livingston Lodge.
I will add that the failure of Kuhl, or of any representative of Meadowcroft with first-hand knowledge about arrangements with the owners and with Nutra 2000 concerning Livingston Lodge, to testify in these proceedings was disturbing, particularly after I advised counsel for Meadowcroft early in the presentation of his case that he would not meet his onus under section 1(5) of the Act if no-one with such first-hand knowledge was produced. Section 1(5) requires respondents on an application under section 1(4) to adduce at the hearing all facts within their knowledge that are material to the allegation that they are under common control or direction (emphasis added). Counsel for Meadowcroft argued at the close of the proceedings that he was entitled not to call evidence within his clients' knowledge if evidence on the same point had been given by Mr. Timman on behalf of Nutra 2000. Certainly it seems clear from the evidence which was heard and the documents filed that Meadowcroft was in possession of a great deal of information about which Mr. Timman knew nothing, and in any event I do not accept that Meadowcroft's onus under section 1(5) could be, or was, met by an allegedly unrelated entity. However, the failure of Meadowcroft and of George Kuhl in particular to meet their onus under section 1(5) of the Act does not compel the Board in the circumstances of this case to reach any factual conclusion which was not in any event established on the evidence, or to order particular remedial relief.

THE ORDER

For all of the reasons set out above, the Board declares that the Meadowcroft Group Limited, 1166067 Ontario Limited and 1107989 Ontario Limited c.o.b. Nutra 2000 shall be treated as constituting one employer for the purposes of the Labour Relations Act, 1995.
This ruling disposes of the two applications under section 1(4) of the Act, but there are outstanding issues on the two applications for certification which may have to be resolved before a final decision and certificates can issue.
Meadowcroft argued at the outset of these proceedings that the representation vote should be set aside because of "confusion" which it claimed must have arisen in the minds of the voters due to the Board's inclusion of "Nutra 2000", "Livingston Lodge" and "Meadoweroft" as the name of the employer on the Board's decisions and notices. In a decision dated February 24, 1997, the Board declined to consider this issue until after a determination had been made as to the identity of the employer. Having regard to the order now issued, I would expect that this argument might now be abandoned by Meadowcroft, but counsel should have an opportunity to seek advice on this point and advise the Board of his client's intentions.
In any event, there is an outstanding dispute as to the status of two individuals claimed to be in CUPE's bargaining unit, which does not impact on the union's entitlement to be certified but which may have an affect on the description of the bargaining unit.
The parties are therefore directed to file with the Board and deliver to each other their submissions as to what issues are outstanding on each of the applications for certification, by May 25, 1998. After review of these submissions the Board will make whatever directions are required, which may, on Board file 2754-96-R, include setting a timeframe for the making of detailed submissions on the status issue pursuant to the Board's Information Bulletin No. 4.
This panel will remain seized.
The responding party Nutra 2000 is directed to post copies of this decision at the workplace in conspicuous locations where they are likely to come to the attention of all employees in the proposed bargaining units.