United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 663 v. The Sarnia Construction Association, 1999 CanLII 20178

[1999] OLRB REP. NOVEMBER/DECEMBER 1091

1946-98-PR The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 663, and International Brotherhood of Electrical Workers, Local 530, Applicants v. The Sarnia Construction Association, as agent for Bayer Inc., Dow Chemical Canada Inc., Nova Chemicals Canada Limited, Imperial Oil Limited and Transalta Corporation, Responding Parties

Construction Industry - Project Agreement - Practice and Procedure - Reconsidera­tion - Board earlier ruling that challenge to project agreement filed by IBEW was untimely -IBEW seeking reconsideration on basis of various alleged errors including date on which Board received notice from project's proponent that the project agreement had been approved, the date on which IBEW gave notice to the Board that it was objecting to the agreement, the Board's alleged failure to apply section 123 of the Act and the remedy found appropriate by the Board if there had been a timely challenge - Reconsideration application dismissed

BEFORE: Harry Freedman, Vice-Chair.

DECISION OF THE BOARD; December 9, 1999

1. Both the International Brotherhood of Electrical Workers, Local 530 ("Local 530") and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 663 ("Local 663") filed timely requests for reconsideration of the Board's decision in this matter dated September 30, 1999. Those requests were circulated to all of the affected parties. The Board received submissions in response to those requests from counsel for the responding parties and from counsel for the United Brotherhood of Carpenters and Joiners of America, Local 1256. In addition counsel for Local 663 and counsel for Local 530 filed further submissions in reply to the submissions made by counsel for the responding parties.

2. The submissions filed by counsel for Local 530 in support of the request for reconsideration assert that the Board's decision of September 30, 1999 made errors that fall into four broad categories:

a) the date on which the Board received the notice the responding parties gave to the Board pursuant to section 163.1 (8) 5 that the proposed project agreement had been approved;

b) the date on which Local 530 gave notice to the Board under section 163.1(9) that it was challenging the proposed project agreement;

c) the Board's failure to apply section 123 of the Act to cure any technical irregularity or defect in form, if there were any, with respect to the giving of notice of its challenge to the project agreement; and

d) the remedy found appropriate by the Board if there had been a timely challenge to the project agreement.

Counsel for Local 663 submitted that the Board erred in its September 30, 1999 decision by refusing to find that the notice of its challenge was timely on the grounds that:

a) the ten day time period in section 163.1(9) is directory and not manda­tory;

b) the failure to comply with the ten day time period in section 163.1(9) is 1092 a technical irregularity which the Board may cure by exercising the power conferred by section 123 of the Act; and

c) the Board ought to interpret the time period in section 163.1(9) as being 10 business days because the parties were relying on the advice they received from the Registrar's office in deciding when to file the notice of their challenge and because this proceeding was a matter of first impression.

Counsel for Local 530, in reply submissions, concurred with Local 663's submission that the time period in section 163.1(9) of the Act is directory and not mandatory.

3. An application for reconsideration is not an opportunity for a party dissatisfied with the result of the Board's decision to reargue the case it had made previously. The principles upon which the Board acts in dealing with applications for reconsideration are well known. A succinct statement of those principles is found in Cineplex Odeon Corporation, [1996] OLRB Rep. Nov.IDec. 922 where the Board wrote at page 924:

As to the general principles applicable on applications for reconsideration, there was little dispute. They are distilled in the following two quotations. First from Canadian Union of General Employ­ees, [1975] OLRB Rep. April 320:

11. Generally, the Board will not reconsider a decision unless a party proposes to adduce new evidence which could not previously have been obtained by reasonable diligence and the new evidence is such that, if adduced, it would be practically conclusive or a party wishes to make representations or objections not already considered by the Board that he had no opportunity to raise previously. (International Nickel Co. of Canada Ltd., [19631 OLRB Rep. 234, 64 CLLC ¶15.493 (Ont. H.C.); Detroit River Construction Case (1962) CLLC ¶16,260). Both legs of this principle depend upon the applicant having been diligent and therefore having had no opportunity to draw the Board's attention to the objection of its concern. The applicant in the case at hand and his lawyer were not diligent in that they were given notice of the hearing date in the matter by the Board. Accordingly they would not appear to come with the ambit of the principle.

Secondly, from John Eniwistle Construction Limited, [1979] OLRB Rep. Nov. 1096 after quoting a portion of the above passage from Canadian Union of General Employees.

These are general standards which the Board has developed as guidelines and which are useful not just to guide the Board in making its decisions, but also to allow parties who may be affected by the Board's decisions some degree of certainty of what to expect from the Board. While it is important for the purpose of certainty that these standards generally be adhered to, it is equally important that they not be followed inflexibly. Although neither of the two conditions precedent stated in the Canadian Union of General Employees case, supra, are satisfied here, the request does raise significant and important issues of Board policy and for this reason the Board will review its decision to determine if it should vary or revoke the decision.

See also K-Man Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185, which mentions the motives for the request and any resulting prejudice as factors to be considered.

The Board in that case also stated later at page 927:

"Reconsideration is not available for the reargument of cases or more creative theories thought of later, in light of new information or jurisprudence; this has been affirmed repeatedly in the Board's jurisprudence. See for instance, Silverwood Dairies, [1977] OLRB Rep. June 392." I am satisfied, similarly to the Board in John Entwistle Construction Limited, [1979] OLRB Rep. Nov.1096, that the requests for reconsideration in this case do raise significant and important issues of Board policy and practice and therefore I am prepared to review my decision to determine whether it should be varied or revoked.

4. With respect to the submissions made by counsel for Local 663 that the Board should interpret section 163.1(9) of the Act as providing a ten business day period of time to file a notice of challenge because this was a matter of first impression and the parties relied on the information they received from the Registrar's Office, there is nothing new in the submissions made by counsel for Local 663 on these grounds. The Board dealt with the reliance of the parties on the advice from the Deputy Registrar at paragraphs 34 through 40 of its September 30, 1999 decision. I am not persuaded that my analysis of that issue was wrong. Therefore, that ground of reconsideration fails.

5. Counsel for Local 663 also submits that the time period in section 163.1(9) was directory and not mandatory and in support of that submission, relies on Nepean Roof Truss Ltd., [1986] OLRB Rep. Sept. 1287 and Del Equipment Limited, [1989] OLRB Rep. Jan 19. Those two cases involved first contract arbitration ordered by the Board and the determination that the time periods set out in section 43 (4) (a) of the Act in the case of Nepean Roof Truss Ltd. and 43 (2) of the Act, in the case of Del Equipment Limited, were directory and not mandatory. In Nepean Roof Truss Ltd., supra, the Board determined that the time period in section 43 (4) (a) was directory. That section of the Act required the Board to commence a hearing and issue its decision within the times stipulated. The failure of the Board to do so did not, in the Board's opinion, render the process a nullity. The Board did not lose jurisdiction to determine the matter because it had not commenced the hearing within the time fixed by section 43 (4) (a) of the Act. The Board also relied on several judicial decisions in coming to the conclusion that the time limit imposed by a statute or collective agreement by which to issue a decision (see Air Care Ltd. v. United Steelworkers of America et al, 1974 CanLII 200 (SCC), 49 D.L.R. (3d) 467 (S.C.C.) and Metropolitan Toronto Board of Police Commissioners, 1973 CanLII 677 (ON HCJDC), 37 D.L.R. (3d) 487 (Ont. Div. Ct.)) or to establish a tribunal (see Lincoln County Roman Catholic Separate School Board and Buchler, 1972 CanLII 600 (ON CA), [1972] 1 O.R. 854) did not result in the arbitration board or tribunal losing jurisdiction over the matter before it. In Del Equipment Limited, supra, the Board held that the time limit in section 43 (2) was not mandatory. Indeed, the Board noted that the applicant in that case did not suggest that the time limits were mandatory. At page 22 the Board wrote:

"The legislation is silent with respect to what results if the Board is unable to meet the time limits specified by section 40a (2) [now 43 (2)]. We cannot accept the suggestion of Board Member Rogers that an applicant is entitled to a direction that a first collective agreement be settled by arbitration if the Board is unable to complete a hearing and issue a decision with respect to its application within the 30 day period specified by section 40a (2), regardless of the stage of the proceeding and notwithstanding that the respondent may have had an incomplete or, as in this case, no opportunity to make its case. To have the legislation operate in such a draconian manner would make a mockery of natural justice and fairness, and would be inimical to the development of good labour relations between the parties. The legislation does not specifically abridge the rules of natural justice or fairness, and where the legislation has not specified any result, much less such a startling one, we cannot accept this was its intent.

6. The time periods in sections 43 (2) and 44 (4) (a) of the Act direct the Board to do something within a specified period of time. Neither of those two sections stipulates the consequence of the Board failing to act within the time prescribed. Those two provisions can be contrasted with sections 163.1 (9) and 163.1(10) of the Act which explicitly set out the consequence of failing to make a challenge within the time specified by section 163.1(9). Section 163 (10) states in part: "A project agreement comes into force...if the agreement is not challenged under subsection 9, upon the expiry of the time period for making such a challenge." Thus, unlike section 43 and the Board decisions relied on by counsel for Local 663 finding that the time periods contained in that section are directory only, the construction of section 163.1 is clear with respect to the time limit for making the challenge to a project agreement; if the challenge is not made within the time specified, the project agreement comes into force. Therefore, contrary to the submission of counsel for Local 663, the Board's September 30, 1999 decision was not contrary to the Board's decision in Del Equipment Limited, supra. Furthermore, I am satisfied that the time period for filing a challenge to a project agreement is mandatory as there are explicit consequences which flow from not acting within the stipulated time. Thus, this ground of reconsideration also fails.

7. Both counsel for Local 663 and counsel for Local 530 submit that the Board has the power (and should have exercised the power) under section 123 of the Act to relieve against any technical irregularity or defect in form with respect to the giving of notice of their challenge to the project agreement. Counsel for Local 530 points out that it sought to rely on section 123 of the Act to relieve against the failure to provide written notice (as opposed to oral notice to the Deputy Registrar by leaving her a telephone message) when the Board concluded that written notice of the challenge to the project agreement was required. Counsel for Local 663 did not elaborate on his submission with respect to section 123 of the Act. Counsel for Local 530 submitted that the Supreme Court of Canada decision in Union Carbide Canada Ltd. v. Weiler, 1968 CanLII 26 (SCC), 70 D. L. R. (2d) 333 relied on by the Board in its September 30, 1999 decision interpreting section 123 of the Act dealt with the power of a board of arbitration and not with the powers of the Ontario Labour Relations Board in proceedings before it. Counsel for Local 530 also relied on several decisions of the Board subsequent to the Court's decision in Union Carbide Canada Ltd. in which the Board considered or applied section 123 of the Act. In addition to relying on Baron Metal Industries, counsel for Local 530 also referred to Saint Elizabeth Health Care-Durham Region, [1996] OLRB Rep. Nov./Dec. 1008, Double S. Construction, [1988] OLRB Rep. August 800; Toronto Hydro-Electric Commission, [1999] OLRD No. 567, Win. Roberts Electrical and Mechanical Limited, [1999] OLRB Rep. Jan./Feb. 113 and B &B Electric Co. Division of Elect robauer Systems Limited, [1996] OLRD No. 4360.

8. The Board in all of the cases relied on by counsel for Local 530 assumed that section 123 of the Act gave it the power to waive or ignore a "technical defect" or a "defect of form". None of the Board decisions cited by counsel for Local 530 referred to the Supreme Court of Canada decision in Union Carbide Canada Ltd., as acknowledged by counsel. Furthermore, none of those decisions undertook any analysis of section 123 of the Act; an analysis done by the Supreme Court of Canada and by the Board in its September 30, 1999 decision in this matter.

9. In Double S. Construction, supra, the Board referred to both sections 104 and 114 [now sections 112 and 123] when it stated that those two sections "...operate together to ensure that errors of form or technical deficiencies do not stand in the way of the adjudication of the real matters in dispute in proceedings before the Board." The Board in that case did not direct itself to the difference between the two sections. Section 104 [now 112] is directed at the Board while section 114 [now section 123] which provides that no Board proceedings "shall be quashed or set aside" if the defect of form or technical irregularity does not cause a "substantial wrong or miscarriage of justice ..." is directed at the courts. The Board does not "quash" or "set aside" its own proceedings.

10. In Saint Elizabeth Health Care-Durham Region, supra, the Board appeared to assume that it could apply section 123 of the Act, but found that it had no application to the situation before the Board. (See page 1013 of that decision.) The Board did not consider section 123 any further. In B & B Electric Co., supra, the Board relied on section 123 of the Act to relieve against the applicant's failure to provide the proper forms to the responding party with its application for certification. The Board at paragraph 34 of the decision put the issue in this way: "The applicant denies that it sent the employer any incorrect forms, or that it otherwise failed to comply with the Board's Interim Rules. But assuming that it did: what of it?" Clearly, the Board in the B & B Electric Co. decision was concerned with a failure to comply with the Board's Interim Rules, not the Act. While the Board in B & B Electric Co., supra, at paragraph 39 used the language of section 123 of the Act to find that the violation of the rules was "no more than a technical irregularity, and no substantial wrong or miscarriage of justice has occurred" and relieved against the violation, the Board's power, in my view, to do what it did in that case stemmed, not from section 123 of the Act, but rather from what was then Rule 22 [now Rule 44] which provided: "The Board may relieve against the strict application of these Rules where it considers it advisable." That same result obtained in Win. Roberts Electrical and Mechanical Limited, supra, where the Board permitted an application for reconsideration to proceed despite it not having been made on the proper form. The Board at page 117, after referring to section 123 of the Act stated "that a defect in form or technical irregularity will not be fatal or determinative of a substantive right." It was clear that the "technical irregularity" in that case was the use of the incorrect form in making an application for reconsideration. The forms used in an application are governed by the Board's Rules. Once again, the power the Board exercised in Win. Roberts Electrical and Mechanical Limited, supra came from Rule 44 and not section 123 of the Act when it permitted the application for reconsideration to proceed despite it not having been filed on the correct form.

11. The Board in Toronto Hydro-Electric Commission, supra, clearly relied on section 123 of the Act to relieve against a premature filing of an application for first contract arbitration under section 43 (1) of the Act. The Board at paragraph 3 of the decision finds that the application was made two days before the time permitted for such an application under the Act. The Board referred to section 123 of the Act when it said at paragraph 4: "This is an appropriate case to apply the provision. While the applications were premature on February 8, 1999, on February 10, 1999 they had matured into proper applications." It did not appear from the Board's decision in that case whether the decision of the Supreme Court of Canada in Union Carbide Canada Limited, supra, was brought to the Board's attention or whether any argument was made concerning the applicability of section 123 of the Act. In any event, as there were no reasons given for finding that section 123 of the Act was exercisable by the Board in the face of the decision of the Supreme Court of Canada interpreting that section of the Act, albeit in relation to an arbitration proceeding, I must with respect, disagree with the Board's decision in Toronto Hydro-Electric Commission as I believe that it is wrong.

12. Therefore, I am satisfied that section 123 of the Act does not confer on the Board any power to relieve against a party's failure to comply with the timeliness and notice provisions set out in the Act. I am not persuaded that the Board's decision of September 30, 1999 interpreting and refusing to apply section 123 of the Act was incorrect and thus, that ground for reconsideration is also dismissed.

13. Counsel for Local 530 submitted that the telephone message to the Deputy Registrar advising that Local 530 was challenging the project agreement should have been treated by the Board as notice of the challenge to the proposed project agreement within the meaning of section 163.1(9) of the Act. Counsel for Local 663 submitted in the request for reconsideration that the telephone message left for the Deputy Registrar by counsel for Local 530 "also engendered the Challenge made by Local 663." That is a factual proposition asserted for the first time in Local 663's application for reconsidera­tion. The facts set out by counsel for Local 530 never suggested that the telephone message to the Deputy Registrar related to a challenge by Local 663 as well as Local 530. If Local 663's challenge to the project agreement had been part of the telephone message left by counsel for Local 530, counsel for Local 530 is the one to have asserted that fact as it was she and not counsel for Local 663 who had left the message for the Deputy Registrar. Thus, as counsel has never asserted that her telephone message to the Deputy Registrar conveyed a challenge to the project agreement by Local 663, Local 663 had not, in my view, given oral notice that it was challenging the project agreement.

14. The telephone message notifying the Board that Local 530 was challenging the project agreement was, according to counsel for Local 530, left sometime towards the end of the week of August 16, 1999. In the factual submissions made by counsel for Local 530, which the Board accepted as having been proved and true for purposes of the application, counsel stated: "Counsel made the call to Deputy Registrar Patricia Grenier towards the end of the week of August 16, 1999 and left a message advising the IBEW, Local 530 was challenging the Sarnia project agreement...." There were conversations between the Deputy Registrar and counsel subsequently about the date by which the challenge had to be filed. It is clear from the facts asserted that the oral notice of the challenge relied on by Local 530 was contained in a telephone message left for the Deputy Registrar.

15. Counsel for Local 530 did not specify the date on which the message was left, let alone the time it was left for the Deputy Registrar. The inherent difficulties that would be caused by treating a telephone message as notice to the Board under the Act is, in my view, evident from the facts asserted by counsel for Local 530. There can be no certainty about the actual content of the notice, the time notice is received by the Board or is given by parties if oral notice or notice by way of a telephone message were to be treated as notice to the Board under the Act. Nevertheless, if the Act permits notice to be given to the Board orally or by way of a telephone message then counsel very forcefully argues that the circumstances of this case require that the Board treat the oral notice received by the Deputy Registrar as notice under section 163.1(9).

16. Counsel argues that "written notice" is required by some provisions of the Act while other provisions of the Act refer to only "notice~~ and therefore, counsel submits, the Act contemplates either oral or written notice being adequate notice to the Board. Counsel submitted that numerous provisions of the Act require "notice in writing" or "written notice" and cited sections 16, 20 (3), 21(a) and (b), 34 (3), 69 (3) and 69 (7) as examples. There are others. It is interesting to note, however, that all of the sections of the Act to which counsel refers and every other section of the Act which I have reviewed that requires "notice in writing" or "written notice" deal with either notice to other parties or notice to the Minister. None of the sections of the Act that require "written notice or 'notice in writing" relate to a notice that is given to the Board. The sections of the Act which deal with notice to the Board (sections 8.1, 14, 43 (4) and 169.1(9) for example) do not specify written notice or notice in writing. In my view, the absence of a requirement of writing when referring to a notice that is to be given to the Board does not suggest that the Legislature intended that the Board would act on oral or written notice. Rather, it suggests to me that the Legislature recognized that the Board would always be receiving notices in writing for the policy reasons articulated in paragraphs 25 and 26 of the Board's September 30, 1999 decision in this matter, in which the Board stated:

"25. Counsel for Local 663 does not make any submission suggesting that Local 663 had given notice prior to August 27, 1999. In my view, the suggestion by counsel for Local 530 that notice of the challenge to the proposed project agreement was given by leaving a telephone message with the Deputy Registrar is without merit. There has never been a situation where the Board has treated oral communication with the Registrar's office as a notice under the Act and none was cited by counsel. To adopt that approach would create an untenable situation for the Board, its staff and more importantly, the parties who appear before the Board. Uncertainty or disputes over who said what to whom and when it was said would give rise to litigation that would have to be resolved by the parties having to testify about what they had said to the Registrar or Deputy Registrar and what they heard the Registrar or Deputy Registrar say to them and by requiring the Registrar or Deputy Registrar to give evidence about conversations they may or may not have had with a party.

26. Apart from the difficulties in trying to have the Registrar or Deputy Registrar accurately recall a specific telephone conversation or message that might become an issue several weeks or months later when those officials are engaged in numerous telephone conversations in connection with a variety of Board proceedings every day, and the prejudice to the Board's ability to discharge its day to day functions if the Registrar or Deputy Registrar were occupied with testifying before the Board, such a process would unduly narrow the privilege afforded by section 117 of the Act. Section 117 of the Act provides:

"Except with the consent of the Board, no member of the Board, nor its registrar, nor any of its other officers, nor any of its clerks or servants shall be required to give testimony in any civil proceeding or in any proceeding before the Board or in any proceeding before any other tribunal respecting information obtained in the discharge of their duties or while acting within the scope of their employment under this Act."

In my view, the purpose of section 117 would be defeated if the Board were to adopt the position that an oral notice left by a telephone message to the Deputy Registrar is notice within the meaning of the Act."

Additionally, in order for the Board to transmit the oral notice it receives to the other parties who may be affected, as it must in order to comply with the rules of natural justice, the Board would have to interpose itself in providing that notice. It is neither appropriate nor a part of the Board's mandate to translate an oral notice into written form so it can be conveyed to the other parties and recorded in the applicable Board file. Therefore, I am satisfied that notice of the challenge to the project agreement was not given to the Board until the Board received written notice of the challenge.

17. Counsel for Local 530, by letter to the Board dated August 27, 1999 and filed with the Board on that date indicated that Local 530 was going to be filing a challenge to the project agreement by August 30, 1999. Counsel for Local 530 also stated in that letter: "In the alternative and without prejudice to our position that the deadline for filing a challenge is August 30, 1999, please take this letter as the filing of the challenge. Particulars of the challenge and accompanying evidence will follow by courier." That letter was copied to counsel for the responding parties and to counsel for Local 663. I note parenthetically that Local 663 did not file anything in writing with respect to its challenge to the project agreement until August 30, 1999.

18. Counsel for the responding parties submits that the letter of August 27, 1999 was insufficient notice of a challenge to the project agreement because it lacked the particulars necessary to establish that Local 530 had the right to challenge the project agreement. Counsel submitted that the challenge to the project agreement must set out, at a minimum, the basis for making the challenge. The notice of the challenge, counsel argued, "must contain sufficient particulars to meet whatever test is applicable, be it under the Act or the Board's jurisprudence. If there are certain criteria which must be met then it is up to the party seeking action from the Board to demonstrate in its application (of any form) that those criteria have, indeed, been met."

19. The content of a notice of challenge to a project agreement under section 163.1 (9) of the Act is a matter which could be, but is not yet dealt with in the Board's Rules. Section 111(2) (n) permits the Board "to determine the form in which. ..any party to a proceeding before the Board must file or present any thing, document or information." The Board's Rules promulgated under section 110 (17) could certainly set out what minimum information is required by a notice under section 163.1(9). The Board has not done so and therefore I must give the plain ordinary meaning to the words "may challenge the proposed project agreement by giving notice to the Board" found in section 163.1(9) of the Act.

20. In my opinion, in the absence of any requirement contained in the Board's Rules as to what a notice under section 163.1 (9) must contain, a union notifying the Board through a letter simply stating that it is challenging the project agreement, without saying any more, is sufficient to meet the tight time limits contained in that section. Thus, I am satisfied that Local 530 gave the Board notice of its challenge to the project agreement on August 27, 1999. There was nothing in the letter from Local 530 indicating that Local 663 was also giving the Board notice that it was challenging the project agreement. Therefore, it is clear that Local 663 did not give notice to the Board of its challenge to the project agreement until August 30, 1999, when it and Local 530 filed their material substantiating their challenge to the project agreement.

21. Both Local 530 and Local 663 assert in their applications for reconsideration that the Board received a copy of the notice from the responding parties that the project agreement was approved as required by section 163.1 (8) 5 on August 17, 1999 and not August 16, 1999 as they had been led to believe by the Deputy Registrar. If the notice of approval under section 163.1(8) 5 had been received by the Board on August 17, 1999, then the notice given to the Board on August 27, 1999 by Local 530 that it was challenging the project agreement was, in fact, given within the 10 day period of time prescribed by section 163.1(9).

22. Local 530, after it received the Board's decision of September 30, 1999 sought information from the Board with respect to the date and time the responding parties gave the notice under section 163.1 (8) 5 to the Board. The material the Board received from the responding parties pursuant to section 163.1(8) 5 showed that it had been transmitted by facsimile transmission at approximately 4:30 p.m. on August 16, 1999. It is apparent, counsel submitted, that the Deputy Registrar understood that the material had been received by the Board at about that time, that is, before 5:00 p.m. on August 16, 1999 because, according to the facts relied on by counsel for Local 530, the Deputy Registrar advised counsel "that the Board had received the Notice of Approval on August 16, 1999...." According to counsel for Local 530, the responding parties had actually transmitted the copy of the notice under section 163.1 (8) 5 to the Board at around 5:30 p.m. on August 16, 1999 and it was received by the Board at 5:36 p.m. on that date. Counsel for the responding parties does not take issue with those factual assertions. I note that Local 530 does not assert that the responding parties gave the Board the copy of the Notice of Approval before it had given that notice to all of the bargaining agents. Thus, the issue raised by Local 530 (and Local 663) is whether the Board should, in this request for reconsidera­tion, find that the notice it received from the responding parties at about 5:30 p.m. on August 16 was received on August 17, 1999.

23. The Deputy Registrar advised counsel that the Board had received the section 163.1 (8) 5 notice from the responding parties on August 16, 1999. The Board, in its decision in this matter dated September 3, 1999, stated at paragraph 3: "The Board received notice that the proposed Project Agreement had been approved by the requisite number of bargaining agents...on August 16, 1999 as contemplated by section 163.1 (8) 5." Furthermore, it is clear that all of the parties to this proceeding acted throughout on the basis that the notice under section 163.1(8) 5 had been given to the Board on August 16, 1999. The Board, in its September 30, 1999 decision stated at paragraph 5: "All parties agree that the requisite notice of approval contemplated by section 163.1(8) 5 was received by the Board on August 16th." While there was no explicit agreement to that effect, the facts relied on by counsel for Local 530 did not take issue with the date on which the notice of approval was filed. Simply put, there was no dispute over the date the notice of approval had been received by the Board when the Board made its September 30, 1999 decision. Neither Local 663 nor Local 530 had raised any question as to the time that the responding parties gave notice under section 163.1(8) 5 to the Board prior to their request for reconsideration. It was only after the Board made its decision of September 30, 1999 in which it found that the time period under the Act for filing a timely notice to challenge a project agreement was 10 calendar days and not 10 working days that Local 530 and Local 663 began to question the precise time that the responding parties actually gave the Board the notice under section

163.1 (8)5.

24. The determination of this issue requires a review of Rules 12 and 13 and comparing those two rules with Rule 23. Rules 12 and 13 provide:

"12. Except for applications covered by Part VI of these Rules, the date of filing is the date a document is received by the Board at its office."

13. All filings must be received at the Board's office during normal business hours estab­lished by the Board (8:30 a.m. to 5:00 p.m.). A filing received by the Board after the close of business hours will be deemed to be filed on the next day, unless otherwise accepted by the Board." If regard were had to only Rule 12, it would be abundantly clear that the notice of approval was filed with the Board on August 16, 1999. Rule 13 modifies Rule 12 somewhat by requiring documents to be filed with the Board during regular business hours, and if they are filed after the close of business, the filing will be deemed to have been made on the next day, unless otherwise accepted by the Board. Thus, it is clear that there is an ability for the Board to treat documents that have been filed after 5:00 p.m. (and before midnight) on any given day as having been filed on either that day or the next day.

14. Rule 23 which deals with the date of delivery is constructed much differently. Rule 23 provides in part:

"The date a document is delivered is the date that the document is received by another party or its authorized representative. However, a document delivered after 5:00 p.m. will be deemed to be delivered on the next day Rule 23 specifically provides that a document delivered (that is, received by a party) after 5:00 is deemed to have been delivered the next day. Rule 23 differs significantly in that respect from Rules 12 and 13.

26. The reason for the difference between Rules 12 and 13 on the one hand and Rule 23 on the other relates, in my opinion, to the ability of individual parties receiving documents to be in a position to verify or dispute the date or time of delivery and the administrative obligations of the Registrar's office to deal with the myriad of documents received every day at the Board by courier, mail, personal delivery and facsimile transmission. It is relatively easy for the Registrar's office to deal with documents that arrive by courier, mail, through personal delivery or by facsimile transmission when the Board's offices are open. If the office is closed and no one is available to deal with those documents when they arrive, then they are generally processed the next day. If, however, documents arrive when the Registrar's office is still able to deal with them, then regardless of the time, whether they are physically received a few minutes before 5 o'clock or a few minutes after 5 o'clock, they may be processed as having been filed on the date they were received by the Board. Thus, documents "slipped under the door" after the Board's offices are closed and the Registrar's staff have left are generally processed the next day and are treated as if they were filed the next day. In my opinion, it does not serve any useful purpose to have a member of the Registrar's office standing by the office door or at a fax machine, with watch in hand, to time stamp documents as they are received to decide whether they were filed on the date they were received or the next day.

27. In my view, Rules 12 and 13 were designed to allow the Board's staff to deal effectively and efficiently with documents once they are filed with the Board. If documents are received before 5 o'clock then they have been filed on the date they are received. If they are received after 5 o'clock then the Registrar's office has the discretion to deal with the documents as if they were filed on that date or the next date. What is clear, though, is the determination of the date of filing is made at that time, not two or three weeks later. Furthermore, the parties affected know the date of filing after being advised of it by the Registrar's office and can therefore act accordingly. Determining whether a document received after 5 p.m. on a particular date was filed on that date or the next date is, in my opinion, one of the core functions of the Registrar's office.

28. Counsel for Local 530, in submissions dated November 15, 1999, argues that "Rule 13 simply gives the Board the discretion to accept something that arrives after 5 p.m. as having arrived on that date. In exercising that discretion, the Board must turn its mind to the question of whether a document was received in a timely manner and then make a conscious decision whether to accept it." With respect, I disagree. The decision to treat a document that is received after 5 p.m. as having been filed on that day rather than the next day does not require an adjudicative decision which takes into account the precise time the document was actually received by the Board. Rather, it is an administrative determination made by the Registrar's office. As such, it is not a matter over which the parties to a proceeding can or should have a dispute, provided the document in issue was received by the Board on that date. (See Rule 12.) The Board will not entertain a challenge to a purely administrative decision to treat a document that was received after 5 p.m. as having been filed on that date as opposed to the next date. That kind of challenge is simply not contemplated by the Act. If the Board were to accept the argument that the discretion exercised by the Registrar's staff with respect to treating a document filed after 5 p.m. as having been filed on that day can be challenged, it would result in parties seeking to scrutinize the Board records and perhaps demand that the Board's staff give evidence at a hearing before the Board about when a particular document was filed and how sure were they about the time they received it. To do so would, in my view, be contrary to the purpose of section 117 of the Act, which provides:

"Except with the consent of the Board, no member of the Board, nor its registrar, nor any of its other officers, nor any of its clerks or servants shall be required to give testimony in any civil proceeding or in any proceeding before the Board or in any proceeding before any other tribunal respecting information obtained in the discharge of their duties or while acting within the scope of their employment under this Act."

29. In this case, the decision was made by the Registrar's staff to treat the notice and accompa­nying evidence as having been filed on August 16, 1999. The Board was not apprised of the reasons for the decision made by the Registrar's staff, nor did it make any enquiries in order to ascertain why the decision was made to treat the notice received on August 16, 1999 as having been filed on that date. Whether the Registrar's staff thought the documents had been received before 5 p.m. on August 16, 1999 or they accepted the documents as being filed on that date even though the documents were received after 5 p.m. on that day simply does not matter. The parties were aware that the Registrar's office had made that determination and did not raise any concern about it. In my view, that determination was well within the Registrar's authority, and there is therefore no proper basis for the Board to find that the notice under section 163.1(8) 5 was received by the Board from the responding parties on August 17, 1999.

30. Having considered the requests for reconsideration in relation to the timeliness of the challenges to the project agreement, I am not persuaded that I erred in finding that Local 530 and Local 663 had not notified the Board that they were challenging the proposed project agreement within the time stipulated by section 163.1(9) of the Act. Under these circumstances, there is no further purpose in reviewing or considering the parties submission with respect to the remedy had a timely challenge been made. I would observe, nevertheless, that the detailed and comprehensive submissions made by counsel for Local 530 could have been filed when the Board initially considered the matter. Even if those submissions had been made at that time, the Board would not have declared that the proposed project shall not come into force, nor would the Board have amended the hours of work provisions of the project agreement. I am not prepared, however, to indicate whether the amount of the reduction affecting the members of Local 530 and Local 663 would have changed since it is unnecessary for me to do so under these circumstances.

31. These requests for reconsideration are dismissed.