[1999] OLRB REP. JANUARY/FEBRUARY 111
2183-98-G International Brotherhood of Electrical Workers, Local 353. Applicant v. Triple-A-96-Electric Ltd., Responding Party
Construction Industry - Construction Industry Grievance - Remedies - Settlement -Parties settling grievance and asking Board to make certain consent orders including order that employer pay fixed sum in damages to union "plus interest calculated in accordance with clause 10001 section 21 of the Collective Agreement" - Board making requested orders, but declining to make interest award on ground that order sought neither clear nor precise and therefore incapable of enforcement - Board allowing 15 days to file agreement setting out actual amount of interest payable or clear formula for calculation of interest owing and request that Board issue further order
BEFORE: Harry Freedman, Vice-Chair, and Board Members J. Knight and G. McMenemy.
DECISION OF THE BOARD; February 19, 1999
1This is a referral of a grievance to the Board for determination under section 133 of the Labour Relations Act, 1995.
The correct name of the responding party is "Triple-A-96-Electric Ltd." and the title of the proceedings is amended accordingly.
The parties entered into a Memorandum of Agreement set out below:
ONTARIO LABOUR RELATIONS BOARD
File No. 2183-98-G
BETWEEN
International Brotherhood of Electrical Workers Local 353,
Applicant,
- and -
Tripe-A-96-Electric Ltd.,
Responding Party.
MEMORANDUM OF AGREEMENT
The parties agree with each other as follows, and request that the Board incorporate the following in a decision as a consent order.
A Declaration that the Responding Party is bound to the collective agreement effective May 1st, 1998 - April 30, 2001 as between The Electrical Trade Bargalning Agency of the Electrical Contractors Association of Ontario and the International Brotherhood of Electrical Workers and the I.B.E.W.
A Declaration that the Responding Party has agreed to abide by the full terms and conditions of the above-mentioned collective agreement.
A Declaration that the Responding Party has violated the collective agreement mentioned above and in particular section 21 clauses 1000 & 1001.
An order that the Responding Party will pay to the Applicant, as damages, the amount of $17,028.95 as full and final settlement for the above violations of the collective agreement. Plus interest calculated in accordance with clause 1001 Section 21 of the Collective Agreement.
- and -
An order that payment is to be made to the Applicant forthwith.
Dated at Toronto this 03 day of February, 1999.
"Alex Alexandros" "Michael J. Oram"
For the Responding Party Business Representative For the Applicant
- The last sentence of paragraph 4 of the Memorandum of Agreement provides:
Plus interest calculated in accordance with clause 1001 Section 21 of the Collective Agreement.
The parties have not, in their memorandum of agreement, calculated the amount of interest payable, nor is the section of the collective agreement to which the parties refer appended to the memorandum of agreement. In these circumstances, an order made by the Board to pay an amount of interest to be calculated in accordance with a formula set out in a provision of the collective agreement that is not part of the memorandum of settlement in addition to the fixed sum would be difficult, if not impossible to enforce.
- The enforcement of a Board order issued in a section 133 proceeding to pay money is done pursuant to section 133(9) of the Act which makes section 48(19) of the Act applicable. Section 48(19) of the Act provides for the filing of the Board's decision, exclusive of reasons, with the Ontario Court (General Division) and upon doing so, the Board's decision, exclusive of the reasons, becomes enforceable as an order of that Court. Without a clear statement of either the amount of interest payable or a readily ascertainable formula for the calculation of interest being set out in the order, the obligation to pay an unspecified amount that is characterized as interest is, in our view, not capable of being enforced through the statutory mechanism contained in the Act for the enforcement of Board orders. The Board should not, in our opinion, issue orders that are not enforceable. See Toronto Transit Commission v. Ryan (1998), 1998 CanLII 14635 (ON CTGD), 37 O.R. (3d) 266 (Gen. Div.) at 271 where the Court wrote in relation to the enforcement of orders of the Board filed in court:
“…members of the community, including legal advisors, have the right to have court orders expressed in terms that are clear, unambiguous and precise."
In our view, the parties' agreement with respect to the order sought for the payment of interest is the antithesis of clarity and precision. Therefore, we decline to order the payment of interest at this time despite the parties' agreement. Should the parties agree that there is additional money owing to the applicant for interest, the parties may file their agreement setting out either the actual amount of interest payable or a clear formula for the calculation of the amount of interest owing and request the Board issue a further decision in this matter. That request for a further order must be filed with the Board within 15 days of the date of this decision. If no such request is filed within that time, no order for the payment of interest will be made. This panel of the Board remains seized with this matter.
- Having regard to the Memorandum of Agreement dated February 3, 1999 between the parties, filed, the Board:
(a) declares that Triple-A-96-Electric Ltd. is bound to the collective agreement effective May 1st 1998 - April 30, 2001 between The Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario and the International Brotherhood of Electrical Workers and the I.B.E.W.;
(b) declares that Triple-A-96-Electric Ltd. has agreed to abide by the full terms and conditions of the above-mentioned collective agreement;
(c) declares that Triple-A-96-Electric Ltd. has violated the collective agreement mentioned above and in particular section 21 clauses 1000 &
1001;
(d) directs Triple-A-96-Electric Ltd. to pay forthwith to the applicant the sum of $17,028.95.