[1999] OLRB REP. SEPTEMBER/OCTOBER 865
1520-99-R; 1523-99-G Drywall Acoustic Lathing and Insulation Local 675, United Brotherhood of Carpenters and Joiners of America, Applicant v. Multi Wall & Ceiling Systems Limited and 714232 Ontario Ltd. o/a Pro Drywall, Responding Parties
BEFORE: Harry Freedman, Vice-Chair and Board Members J. Knight and G. McMenemy.
DECISION OF THE BOARD; October 13, 1999
This is an application under sections 69 and 1(4) of the Labour Relations Act, 1995, S.O. 1995, c. 1 (the "Act") (Board File No. 1520-99-R) for declaratory and other relief and a referral of a grievance to the Board for determination under section 133 of the Act. (Board File No. 1523-99-G)
Both the application in Board File No. 1520-99-R and the referral in Board File No. 1523-99-G were made on August 24, 1999. The accompanying Certificate of Delivery in Board File No. 1520-99-R (Form A-24) and Certificate of Delivery in Board File No. 1523-99-G (Form A-86) state that the responding parties were served on August 24, 1999 by delivering a copy of the necessary documents required by Rules 25 and 155 of the Board's Rules of Procedure to the responding parties by giving them to a courier who advised they would be delivered not later than noon on August 24, 1999. The Registrar faxed a Confirmation of Filing of Application Under Section 69 and/or Subsection 1(4) (Form B-16) and a Confirmation of Filing of Referral of Grievance to Arbitration (Form B-6) to the fax numbers provided for the responding parties in the application and referral, (905) 428-2063 and (905) 686-2337 on August 27, 1999 at approximately 12:55 p.m.
As of the date of this decision, none of the responding parties have filed a Request for Hearing and Notice of Intent to Participate (Form A-87) or any other material in response to the referral in Board File No. 1523-99-G or a Response to Application Under Section 69 and/or Subsection 1(4) of the Act (Form A-25) in Board File No. 1520-99-R. The Board's Rules of Procedure explicitly stipulate the consequences of failing to comply with the filing requirements contained in the Rules.
Rule 41 of the Board's Rules of Procedure, which is applicable to the application in Board File No. 1520-99-R provides:
"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 cancel a hearing or consultation, if one is scheduled, and decide the case upon the material before it without further notice."
- Furthermore, section 133 of the Act provides, in part:
"(7) The Board is not required to hold a hearing if the responding party does not file any material.
(8) If the Board does not hold a hearing in the circumstances described in subsection (7), the Board may determine the matter with reference only to the material filed by the party referring the grievance.
(9) If the Board accepts the referral, the Board has exclusive jurisdiction to hear and determine the difference or allegation raised in the grievance referred to it, including any question as to whether the matter is arbitrable, and subsections 48(1) and (12) to (2) apply with necessary modifications to the Board and to the enforcement of the decision of the Board."
In addition, the Board has very wide powers to require a party to provide particulars, documents, and any other information the Board deems necessary. (See Sections 111 (2)(a) and (b) of the Act.)
The Board's Rules in respect of section 133 proceedings place a substantial burden on the applicant. As well as filing certain material with the Board, the applicant must provide to the responding party:
A copy of the application
A copy of the Notice of grievance referral.
A blank copy of the Request for Hearing and Notice of Intent to Defend (Form A-87, i.e. the form the responding party requires to file its response.
A blank response form for the responding party's use.
A copy of the Board's rules with respect to section 133 referrals (i.e. Part VIII of the Rules, being rules 143-163) and Information Bulletin No. 20 which provides the responding party with further information about the process involved in a section 133 application (including the consequences of default).
The applicant has a similar, but not quite as onerous an obligation in applications under sections 69 and 1(4) of the Act. The applicant must deliver to each responding party the following material:
A completed copy of the application.
A blank copy of the Response to the application (Form A-25).
Notice to the Responding Parties of the application (Form C-9) with the names of the parties and the date inserted.
The only thing a responding party must do to avoid default proceedings in a section 133 referral is to complete the Form A-87 supplied by the applicant and deliver it to the Board and the applicant within five days of the date of the Board's Confirmation of Filing (Form B-6). Form A-87 requires little more than the responding party's name and address and an assertion that the responding party wishes to defend against the grievance referral. The substance of that defence is contained in the response that is not due until 9:30 a.m. on the day set for hearing. The responding party in a proceeding under sections 69 and 1(4) must, within 10 days (excluding Saturdays, Sundays and holidays) after the application was delivered to it, file its response. If there is, in any event, not enough time to prepare a response and more time is needed to compile the information and draft a response, a responding party may request that the Board exercise its power under Rule 49 to lengthen the time for filing its response if it provides adequate reasons for the Board doing so and makes its request before the time for filing the response has expired. Where, however, the responding party does nothing after having an application served on it, there is no reason for the Board to exercise its discretion to extend the time for filing a response.
The Board's Rules require quick responses from responding parties in many sorts of applications. In an application for certification, for example, a responding employer (who is often unfamiliar with proceedings under the Act) must respond within two days after the application was served on it. In a section 133 proceeding, the responding party has some relationship with the applicant and therefore should have some understanding of the contractual and statutory context in which a grievance referral arises. In any event, the Form B-67 faxed to the responding party contains the following warning in bold print:
"The failure to file a timely Request in the way required by the Board's Rules of Procedure may result in the referral being decided without a hearing and without further notice to the defaulting party."
Similarly, the Notice to the Responding Party Of Application Under Section 69 And/Or Subsection 1(4) Of The Act (Form C-9) delivered to the responding parties states in paragraph 7:
"If you do not file your response and other required documentation required by the Board's Rules, the Board may not process your response and documents, and may decide the application without further notice to you. Furthermore, you may be deemed to have accepted all the facts stated in the application."
- The Board's Rules deal specifically with the consequences of failing to file the Form A-25 and the Form A-87. Rule 41, set out earlier, allows the Board to proceed to deal with the application based on the material filed and to deem the responding party to have accepted all of the facts stated in the application. Rules 160 to 162, which are part of the Rules package delivered to the responding party by the applicant, provide as follows:
"160. If a responding party does not deliver a "Request for Hearing and Notice of Intent to Defend" (Form A-87) in the way required by these rules, he or she may automatically be deemed to have accepted all of the facts stated in the application, and the Board may cancel a hearing (if one is scheduled), and decide the case (or part of the case) upon the material before it without further notice.
Where the facts stated in the application are deemed to be true and the Board considers that it can make a finding of liability, but cannot determine the question of damages, the Board may decide the liability issue under Rule 160 and leave the damages issue to be determined at an oral hearing.
Where the Board decides or has decided a case (or part of a case) under Rule 160, the responding party may not file a Request or a response, or take any other step in connection with the application, other than a reconsideration application, except with the permission of the Board."
Therefore, the Board may proceed to deal with both the application under sections 69 and 1(4) of the Act and the referral of a grievance to the Board for determination under section 133 of the Act where the responding parties have ignored the application and referral delivered to them.
An application under sections 69 and 1(4) of the Act affects the employees, if any, of the responding party in respect of whom the applicant seeks a declaration that it holds bargaining rights (the "target") by virtue of a sale of a business or by reason of the Board declaring that the responding party for whom the applicant already holds bargaining rights and that "target" responding party are a single employer for purposes of the Act. The Board requires the responding parties to post a notice of the application together with the application where they are most likely to come to the attention of the employees affected. Paragraphs 3, 4 and 5 of the Confirmation Of Filing Of Application Under Section 69 and/or Subsection 1(4) Of The Act (Form B- 16) sets out the posting requirement.
Paragraph 5 of Form B-16 states that: "The applicant should also verify the posting and should complete and file section 2 of the Confirmation of Posting form (Form A-26) immediately. If there has been a failure to post notices, the applicant should notify the Registrar immediately." There is nothing in the file which indicates that either of the responding parties has posted the requisite notice. The applicant has not filed a verification of the posting but did not contact the Registrar to advise that the posting had not been done.
In these circumstances, the Board cannot proceed further with the application in Board File No. 1520-99-R until the applicant certifies to the Board that the responding parties do not have any employees at the present time who would be affected by the application (so that notice to employees is unnecessary) or provides the Board with the location (or locations) where those employees are working in order for the Board to authorize a Labour Relations Officer to attend to post the notices or advises the Board that the notice was, in fact, posted by the responding party in accordance with the Board's direction contained in the Confirmation of Filing (Form B- 16).
Accordingly, we hereby adjourn consideration of this matter until the applicant advises the Board that the "target" responding party has no employees or until the terminal date set by the Registrar in the notice to the employees the Labour Relations Officer has posted has passed or until the applicant advises the Board that the requisite notice was posted. The Board directs the applicant to provide the Registrar with the information described in the preceding paragraph within 10 working days of the date of this decision. If that information is not provided by that date, the application in Board File No. 1520-99-R will be dismissed.
This panel of the Board remains seized with this matter.