John Deruiter v. T.W.A. Canada, Local 2693 Industrial Wood & Allied Workers of Canada, 1999 CanLII 19500

[1999] OLRB REP. SEPTEMBER/OCTOBER 848

1424-99-R; 1507-99-U John Deruiter personally and on behalf of the Employees of Industrial Hardwood Products Ltd., Applicant v. T.W.A. Canada, Local 2693 Industrial Wood & Allied Workers of Canada, Responding Party v. Industrial Hardwood Products (1996) Ltd., Intervenor; T.W.A. Canada, Local 2693 Industrial Wood & Allied Workers of Canada v. Industrial Hardwood Products (1996) Ltd., Responding Party

BEFORE: D. L. Gee, Vice-Chair.

APPEARANCES: Kenneth Paquette and Robert Nauarretta on behalf of the I.W.A. Canada, Local 2693 Industrial Wood and Allied Workers of Canada, no one appearing on behalf of Industrial Hardwood Products (1996) Ltd., Martin Rosenbaum appearing as agent for John Deruiter's counsel for the purposes of the adjournment and change of venue requests only, no one appearing on behalf of John 2 Deruiter on the merits.

DECISION OF THE BOARD; September 20, 1999

1. Board File No. 1424-99-R is an application for termination of bargaining rights under section 63 of the Labour Relations Act, 1995 (the "Act") in which the I.W.A. Canada, Local 2693 Industrial Wood & Allied Workers of Canada (the "union") seeks dismissal of the application under section 63(16) of the Act. Board File No. 1507-99-U is an application under section 96 of the Act alleging that Industrial Hardwood Products (1996) Ltd. (the "employer") has violated sections 70, 72, 76 and 86(2) of the Act. The employer filed a response in which the union's allegations are denied. The particulars relied upon by the union are identical in both files and accordingly they were listed for hearing together.

Adjournment and Change of Venue Requests

2. All of the parties were advised on August 13, 1999 that the hearing of Board File No. 1424-99-R (which, as indicated above, asserts the same allegations as Board File No. 1507-99-U) would take place on September 13 and 14. 1999. On September 1, 1999, counsel for the applicant wrote to the Board's Vote Coordinator requesting that the Labour Relations Officer meeting scheduled for September 8, 1999 and the hearing scheduled for September 13 and 14, 1999 be rescheduled. No reason for the request was given.

3. By letter dated September 7, 1999, the Manager of Field Services advised the parties that the Labour Relations Officer meeting scheduled for September 8, 1999 was cancelled.

4. By letter dated September 7, 1999 counsel for the applicant wrote to the Board indicating the applicant's desire to meet with the union and attempt to resolve their respective concerns. Counsel further indicated that, as a result of his having been scheduled for another matter on September 13, 1999, he was unavailable to attend at the hearing of the termination application in Toronto on September 13 and 14, 1999. The letter states "[w]e would ask the Ontario Labour Relations Board to adjourn the hearing scheduled for September 13th and 14th, 1999, on the basis of the unavailability of counsel for the employees". In addition, counsel requested that the venue of the hearing be moved to Thunder Bay as "over 25 employees wish to give evidence at the hearing of this matter to express their views on the decertification of the Union." The employees in question live and work in Thunder Bay.

5. On September 9, 1999, the union wrote to the Registrar of the Board expressing its opposition to the request for an adjournment and a change in venue.

6. On September 10, 1999, counsel for the applicant wrote to the Board asking that the hearing be adjourned and rescheduled in Thunder Bay. The letter further indicates that the applicant had received no documentation or information from the union "at all about what evidence they intend to rely upon at the hearing of this matter. We assume that they intend to call witnesses, but have no idea what witnesses they intend to call. We assume that they have documentation they wish to rely upon, yet have received no copies of that documentation." There is no requirement that a party to Board proceeding provide the other side with information concerning the evidence it intends to call or the names of its witnesses. No request was made of the Board for a pre-hearing production order.

7. The Board declined the applicant's request for an adjournment by way of Board decision dated September 10, 1999 which read as follows:

8. The Board is in receipt of correspondence from counsel for the applicant in Board File No. 1424-99-R requesting an adjournment on the basis that he is unavailable as a result of other commitments. The Board does not grant adjournments in order to accommodate counsel's schedule unless the hearing has already commenced. Accordingly, the request for an adjournment is hereby denied.

2.Counsel further requests a change in venue. The hearing of this matter will proceed on September 13, and 14, 1999 in Toronto, as scheduled.

8. The Board's decision of September 10, 1999 misstates the Board's policy. The decision should have indicated that the Board does not consult counsel concerning their availability prior to the first day of hearing but does so when it is necessary to set continuation dates. Once dates have been set the Board's general policy is that adjournments will not be granted except on consent of all the parties.

9. The Board's policy on adjournments exists for a number of reasons. The Board schedules thousands of cases for hearing every year. In the past few years, the Board's budget, and hence personnel, has been significantly cut. It is simply beyond the Board's resources to either consult with counsel as to their availability in each and every instance or reschedule hearing dates a number of times. In addition, labour relations matters, involving ongoing relationships between the parties and affecting the daily working lives of employees, require expeditious treatment. If the Board were to delay the scheduling of cases until such time as it was convenient for all concerned, expedition would be impossible.

10. The policy is, however, only a general one and consideration is given to individual requests for adjournments.

11. In the present case, the sole reason given for the applicant's request for an adjournment was the unavailability of counsel. The applicant was informed that the hearing would be held on September 13, 1999 on August 13, 1999. Notwithstanding that the applicant was represented by counsel at that time, counsel did not immediately contact the Registrar of the Board with respect to a scheduling conflict. No mention was made of counsel being unavailable for the hearing date set until over two weeks later on September 1, 1999. No explanation was provided as to why the scheduling conflict was not raised with the Board earlier or why, if the scheduling conflict just arose, the other matter should be given priority over the instant matters. In any event, counsel knew of his scheduling conflict at least two weeks prior to the hearing date and hence had sufficient time to transfer the file to another lawyer in his office or assist the applicant with retaining other counsel. Accordingly, having regard to the fact that counsel did not seek an adjournment as early as he could have and had ample time to assist the applicant in retaining alternate counsel, the adjournment request was denied.

12. The Board's decision of September 10, 1999, further indicated that the hearing would commence as scheduled in Toronto.

13. Once again, the Board has a general policy on when it will hold a hearing outside of Toronto. Generally speaking, the initial hearing days are scheduled to take place at the Board's offices in Toronto. As indicated above, the Board's resources have been significantly reduced in recent years and its budget simply does not allow for the cost of panels of the Board to travel in all instances where such might appear to be to the parties' advantage. The Board's experience has been that, in a substantial number of cases, the hearing on the merits does not actually commence on the first scheduled day of hearing. A Labour Relations Officer meets with the parties in most instances on the morning of the first day of hearing. Discussions between the parties and the Labour Relations Officer may result in a settlement or adjournment on consent of the parties. In other cases, the parties appear before a panel of the Board for the purpose of dealing with preliminary issues such as document production or order of proceedings. The panel may have to adjourn in order to consider the issues argued before it or, where a ruling is given, an adjournment may be necessary in order for the Board's ruling to be complied with. Thus, for a variety of reasons, the Board has found that in a significant number of cases, the hearing on the merits does not actually commence on the morning of the first scheduled hearing day and it is thus not an efficient use of the Board's resources to send a panel out of town for the first scheduled hearing day. The Board typically travels only after the first scheduled days have been held in Toronto and it is apparent that the hearing will be proceeding on the merits.

14. In the present case, counsel for the applicant sought a change in venue to Thunder Bay because 25 employees wished to testify to the fact that they did not want the union. The issue for the Board to determine in these matters is whether the employer, or someone acting on behalf and the employer, initiated the termination application or whether the employer committed an unfair labour practice. Unless the Board found that the employer, or someone acting on behalf of the employer, initiated the termination application or committed an unfair labour practice, there would be no reason for the Board to hear the evidence of the 25 employees in question. Absent a finding that the employer, or someone acting on behalf of the employer, initiated the termination application or committed an unfair labour practice, presumably the Board would order the ballots cast in the vote counted and the vote results would be determinative of the application. Accordingly, it was not apparent to me that the Board would have to hear the evidence which the applicant wished to call and was necessitating his request for a change in venue. As a result, the request for a change in venue, prior to the commencement of the hearing, was denied. Had the applicant, or his counsel, attended at the first day of hearing, issues such as how the Board could conduct the case and receive the evidence so as to impose as little cost as possible on the parties could have been canvassed.

15. As a result of the Board's decision denying the applicant's request for an adjournment, the hearing remained scheduled for September 13 and 14, 1999 in Toronto.

16. On the morning of the first day of hearing, Mr Rosenbaurn attended as agent for the applicant's counsel for the sole purpose of requesting an adjournment and a change in venue. Having regard to the fact that both of these issues were ruled upon in the Board's decision of September 10, 1999, the request was in reality a request that the Board reconsider its decision.

17. Pursuant to section 114(1) of the Act, the Board has the discretion to reconsider any decision it has made. Section 114(1) states:

18. (1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

19. The principles which the Board applies in an application for reconsideration have been detailed in numerous decisions including K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185 and John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096. Generally, the Board has said that it will not reconsider its decisions unless a party proposes to adduce new evidence which would be practically conclusive of the matter, which could not previously have been obtained through the exercise of due diligence, or the party desires to make representations not previously considered by the Board which it had no prior opportunity to raise. The Board may also reconsider a decision if the request raises significant and important issues of Board policy not considered in the decision.

20. In the present case, Mr. Rosenbaum did not make any representations to the Board which applicant's counsel did not have prior opportunity to raise. Counsel for the applicant wrote three letters to the Board in which he indicated his need for an adjournment. Counsel had ample opportunity to set out in these letters the reasons for his adjournment request. The sole reason set out in his letters was his own unavailability. Further, counsel set out his arguments in support of his request that the Board hold the hearing in Thunder Bay. The Board considered the contents of each of these letters prior to reaching its decision to deny the adjournment request and hold the scheduled hearing days in Toronto. There is no basis for the Board to reconsider its decision of September 10, 1999.

21. In any event, I did consider the new bases put forward by Mr. Rosenbaum in support of the applicant's request for an adjournment.

22. Mr. Rosenbaum indicated that, while the unavailability of counsel for the applicant was a very important basis for the adjournment request, it was only one of the bases.

23. Mr. Rosenbaum argued that I ought to adjourn the matter as, given that the hearing was now under way, according to Board policy, an adjournment would be granted to accommodate counsel's schedule. This argument is absurd. Clearly the Board's policy of not considering counsel's schedule prior to the commencement of a hearing is an effort to use its resources efficiently and have cases heard expeditiously. Clearly the reason the Board does consider counsel's schedule after the commencement of a hearing is to ensure continuity of counsel on a case. To suggest that the request for an adjournment made by an agent for the counsel who would be conducting a case, at the very commencement of the first day of a scheduled hearing, where a panel has been convened and the parties are present, should be handled in the same manner as a request made by counsel retained on the merits after the commencement of a hearing, is without comprehension.

24. Mr. Rosenbaum indicated that the adjournment request was also made because the meeting with the Labour Relations Officer had been cancelled and the applicant wanted the meeting to be held. Quite simply, the fact that the Labour Relations Officer meeting was not held is not a reason to adjourn the hearing. A Labour Relations Officer typically attempts to meet with parties days in advance of the commencement of the hearing. The Board makes the services of Labour Relations Officers available to parties because the Board's Officers have an excellent record of being able to assist parties in resolving some or all of the outstanding issues in dispute thereby alleviating the Board's hearing schedule. The fact that the Board does its best to make such services available to parties does not turn them into a "right" which a party can insist on prior to the morning of the hearing. Further, a Labour Relations Officer was available to meet with the parties on the morning of the hearing. Had the applicant attended at the hearing he would have had the opportunity to take advantage of the services of a Labour Relations Officer prior to the hearing commencing. Thus, the lack of a Labour Relations Officer meeting being held prior to the first day of the hearing is not a basis on which an adjournment of the hearing would be granted.

25. Mr. Rosenbaum further indicated that an adjournment was sought because the union had not provided any documents and because particularity was lacking in its pleadings.

26. The sole indication prior to the morning of the hearing that the applicant had any issue with the material provided to him by the union is contained in a letter by counsel for the applicant dated September 10, 1999 in which he stated that he has received no documents from the union, has no information as to what evidence the union intends to rely upon and has no idea what witnesses they intend to call. As indicated above, there is no requirement that parties to Board proceedings provide the other side with information concerning the evidence or witnesses they intend to call. In any event, at no time prior to the morning of the hearing did applicant's counsel request document production or further particulars from the union or ask the Board to make an order for pre-hearing production of same.

27. The Board's Rules of Procedure deal with a party's obligation to produce documents to the other side and set out allegations as well as the consequences of failing to do so. Rules 26 and 36 through 44 provide as follows:

28. Any application filed with the Board must include the following details:

a) the full name, address, telephone number and facsimile number of the appli­cant, of a contact person for the applicant, of the responding party and of any other person who may be affected by the application;

b) the sections of the Act or any other act that relate to the application, including the sections that are claimed to have been violated, if any;

c) a detailed description of the orders or remedies requested;

d) a detailed statement of all the material facts on which the applicant relies, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly;

e) a certificate verifying delivery of the application to the responding party or parties.

Filing documents with the Board and delivering of documents to other parties

36. Each party must file with the Board not later than ten (10) days before the first date set for hearing or consultation three (3) copies of all documents upon which it will be relying in the case (for the use of the panel). At the same time, each party must deliver copies of those documents to each of the other parties.

37. Documents filed with the Board must be arranged in consecutively numbered pages and

must be accompanied by a table of contents describing each document.

Obligation to Make Allegations Promptly

38. Where a party in a case intends to allege improper conduct by any person, he or she must do so promptly after finding out about the alleged improper conduct and provide a detailed statement of all material facts relied upon, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly.

Where Rules Not Followed

39. An Application or response may not be processed if it does not comply with these Rules.

40. The Board may decide an application without further notice to anyone who has not filed a document in the way required by these Rules.

41. 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.

42. No person will be allowed to present evidence or make any representations at any hearing or consultation about any material fact relied upon which the Board considers was not set out in the application or response and filed promptly in the way required by these Rules, except with the permission of the Board. If the Board gives such permission, it may do so on such terms as it considers advisable.

43. The Board may also require a person to provide any further information, document or thing that the Board considers may be relevant to a case and to do so before or during a hearing.

44. The Board may relieve against the strict application of these Rules where it considers it advisable.

45. Further, section 111 of the Act empowers the Board to order the production of documents in advance of a hearing. The Board regularly does so upon the request of a party.

46. The Board declined the request for an adjournment based on the lack of document produc­tion and level of particulars set out in the union's pleadings for two reasons. First, the applicant's counsel did not request document production and particulars in a timely manner. As indicated above, although applicant's counsel mentioned on September 10, 1999 that he had no documents nor informa­tion from the union about the evidence they intended to rely upon he did not make a request of the union for same nor did he seek a Board pre-hearing production order. Further, prior to the commencement of the hearing, counsel sent three letters to the Board in which he asserted that the hearing must be adjourned. None of the letters indicated that counsel required an adjournment as a result of not having been provided with documents or particulars. The sole reason given by counsel was his unavailability due to a scheduling conflict. It was only after the Board declined the applicant's request for an adjournment based on counsel's unavailability that it was asserted that an adjournment was required due to the lack of documents and particulars.

47. Secondly, it was not apparent that the fact that the union had not provided the applicant with documents and that, in the applicant's submission, the union's materials were lacking in particularity, necessitated an adjournment. In my view, the request for an adjournment based on document production and particulars was premature.

48. The fact that the union did not provide the applicant with documents prior to the hearing is not automatic cause for an adjournment. It could simply be that the union had no documents upon which it was relying (and in fact at the hearing which was held the union did not rely on any documents). If the union did have documents upon which it was relying which had not been produced in accordance with the Board's Rules of Procedure, it would then become a question as to whether the Board would, given the Rule violation, permit the union to rely on the documents. One of the factors the Board typically considers in determining whether to permit a party to rely on documents not provided to the other side in accordance with the Board's Rules of Procedure is whether permitting the party to do so would necessitate an adjournment and consequently delay the proceedings. Quite often, if allowing the documents would necessitate an adjournment, the documents are not allowed. Only, once it was determined that the union in fact had documents which it intended to rely upon and that the Board was going to permit the union to submit the documents into evidence, would the question of an adjournment arise - and even then an adjournment would only be granted if the Board was satisfied that the applicant could not, given that he had not been provided with the documents in advance of the hearing, adequately deal with the evidence. Accordingly, the applicant's request for an adjournment prior to the commencement of the hearing based on the fact that the union had not provided him with any documents was premature.

49. Concerning the request that the hearing be adjourned because the application was lacking in particulars, I asked Mr. Rosenbaum if he had a list of the particulars which counsel for the applicant was seeking. He did not. I asked counsel whether, if the union provided him with the particulars the applicant was seeking, he was prepared to proceed with the hearing. I was advised that he was not prepared to proceed on the merits, he had been retained for the sole purpose of seeking an adjournment and change in venue. He further indicated that counsel for the applicant, once provided with the particulars, would need time to prepare.

50. Clearly, the adjournment was not necessitated by a lack of particulars. Had counsel for the applicant been in attendance, he could have advised the Board as to the particulars sought. The Board may have ordered the union to provide further particulars. The Board may not have. As provided for in Rule 42 of the Board's Rules of Procedure, the Board may have ruled that the union would not be permitted to present evidence with respect to any particulars not set out in its response. Once again, in the course of determining whether to permit a party to amend its pleadings to include particulars that were not pled in accordance with the Board's Rules of Procedure, the Board will often consider whether doing so will create the need for the proceedings to be adjourned. Frequently, where permitting the addition of particulars would create the need for an adjournment, the Board will not allow the amendment and will restrict the party to the material facts properly pled. If the Board did order the union to provide the applicant with the particulars sought, it is entirely likely that there may have been nothing contained in the additional particulars which the applicant was not in a position to respond to and the hearing would have proceeded. It is only if the Board ordered the union to provide further particulars and there was something in the particulars provided that the applicant was not in a position to respond to that the Board would have had to consider whether the hearing ought to be adjourned. However, as a result of counsel's absence, the Board was unable to entertain the request for additional particulars and it was never determined whether the additional particulars were such that the applicant necessitated an adjournment. The request for an adjournment at the stage it was made was premature.

51. Finally, Mr. Rosenbaum suggested that the hearing ought to be adjourned in order that the hearing could be held in Thunder Bay. I have set out my reasons above as to why a change in venue was denied in the Board's decision of September 10, 1999. The same reasons apply to Mr. Rosenbaum's request made on the morning of the hearing.

The Merits

34. Following the Board's oral ruling that the hearing would not be adjourned, Mr. Rosenbaum withdrew from the hearing. The employer did not attend the hearing. Accordingly, the Board advised the representative of the union that it would hear the union's evidence in support of its request that the termination application be dismissed under section 63(16) and that the employer had violated sections 70, 72, 76 and 86(2) of the Act. The Board heard the oral testimony of Ken Paquette, Second Vice-President of I.W.A. Canada, Local 2693 and one of the employees of the employer who is a member of the bargaining unit.

35. The evidence adduced establishes that the union was certified following a Board decision in which it was determined that the employer had violated the Act. The parties were only able to conclude a first collective agreement by way of first contract arbitration.

36. The evidence establishes that John Deruiter is an employee in the bargaining unit employed as a mechanic. On June 30, 1999 he called bargaining unit employees into the lunch room during working hours and told them to sign the petition. Mr. Deruiter further told the employees that the employer would pay their benefits if they got rid of the union and that the amount of money that they were paying as union dues would be set aside and, when they quit or retired, they would receive a payment equivalent to double the amount set aside. Mr. Deruiter also told the employees that the Company would shut down if the union remained.

37. The evidence further establishes that, at a meeting held on August 14, 1999, Mr. Deruiter told a number of employees, in the presence of Mr. Paquette, that he had negotiated with the owner of the company and, if the union was decertified, there would be raises and a wage increase for everyone. Mr. Deruiter further stated that the employer allowed him to do the petition at work on work time because he did not have time to do it after work.

38. One employee was told by Mr. Deruiter that he should sign the petition because Mr. Deruiter had been told that if the union was "taken out" the employees would get greater working hours and the bonus program would be put back in.

39. Much of the evidence that the union relies upon is hearsay evidence. However, the evidence of what Mr. Deruiter said in the presence of Mr. Paquette concerning his negotiations with the employer with respect to wage increases in the event of the union's decertification and the fact that the employer allowed him to do the petition at work on work time is not hearsay evidence in relation to the termination application as it is an admission made by a party to the proceedings. For the purposes of the termination application this evidence is sufficient to establish that the employer was aware of the petition and was negotiating with the originator of the petition concerning benefits that would be made available to the employees, including Mr. Deruiter himself, if the union was decertified. This evidence further establishes that the employer assisted Mr. Deruiter by allowing him to use work time and the work place to circulate the petition. It is my determination that such evidence is sufficient to establish that the employer, or Mr. Deruiter acting on behalf of the employer, initiated the petition.

40. At the hearing of these matters, the union did not request any specific remedial relief in connection with Board File No. 1507-99-U. Having regard to the fact that John Deruiter is not a party to Board File No. 1507-99-U, the evidence of what he said to Mr. Paquette is not admissible in Board File No. 1507-99-U as an admission made by a party to the proceedings. Having regard to the fact that no specific relief was requested in connection with Board File No. 1507-99-U, and the state of the evidence, it is my determination that Board File 1507-99-U ought to be dismissed.

41. Having regard to my findings as set out above I hereby make the following orders and directions:

(a) I hereby declare that the employer or a person acting on behalf of the employer initiated the application in Board File No. 1424-99-R and accordingly, pursuant to section 63(16) of the Act, the application in Board File No. 1424-99-R is hereby dismissed.

(b) The Registrar will destroy the ballots cast in the representation vote taken in Board File No. 1424-99-R following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.

(c) The employer is directed to post copies of this decision immediately, adjacent to all copies of the "Notice of Vote and of Hearing" posted previously. These copies must remain posted for 15 days.

(d) I hereby dismiss the application in Board File No. 1507-99-U.