0842-99-U James McKeary, Applicant v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128, Responding Party.
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; February 4, 2000
1The Board, by decision in this application under section 96 of the Labour Relations Act, 1995, S.O. 1995, c. 1 (the "Act") dated December 17, 1999, described in paragraph 4 of that decision the parties’ agreement as to how this matter should proceed as follows:
“…the parties ultimately agreed that the hearing of this application should proceed only in respect of the principal issue raised in the application. The parties agreed with my description of that principal issue, that is, the essence of the application is the propriety of the responding party’s referrals in relation to the three jobs set out below and whether the responding party’s conduct, in relation to those referrals, violated section 75 of the Act. The three jobs that are the subject of this application are:
a) May 1998 Blenkhorn & Sayers (Dofasco)
b) June 1998 Ged-Van (Air Liquide)
c) November 1998 Kvaerner Jaddco (Stelco)”
Subsequent to that decision, the parties attempted to reach agreement with respect to production of documents. Counsel for the applicant provided counsel for the responding parties with a demand for production of documents. The documents requested were listed by items 1 through 7 inclusive. Counsel for the responding party advised counsel for the applicant that the documents requested in items 7 (a) (iii), 7 (b), 7 (d), 7 (e), 7 (f) and 7 (g) of the demand would be produced. Counsel for the responding party has refused to produce the balance of the documents requested by the applicant.
2Counsel for the applicant filed submissions in support of his request for an order requiring the responding party to produce the requested documents that the responding party refuses to produce. The direction the Board gave to the parties with respect to filing of submissions in support of a request for an order to produce documents was set out in paragraph 6 of its December 17, 1999 decision, which stated:
“… [a] party may move for an order from the Board for production by filing submissions in support of the order sought with the Board and delivering a copy of those submissions to the other party on or before January 24, 2000. Submissions in reply to that motion must be delivered to the other party and filed with the Board on or before January 31, 2000 and the Board would thereupon endeavour to make its decision with respect to the motion for an order for further production on or before February 7, 2000.”
Counsel for the responding party objected to the request for the order on a number of grounds, including that it was untimely.
3Counsel for the applicant filed his request for an order with the Board by facsimile transmission which, he submitted in response to the timeliness objection, was transmitted to the Board twice on January 24, 2000, once at 4:55 p.m. and again at 5:01 p.m. I accept that the request was filed with the Board on January 24, 2000, whether the Board received the request just before or just after 5 p.m. on that date. (See Rule 13 of the Board’s Rules of Procedure and The Sarnia Construction Association, Board File No. 1946-98-PR, decision dated December 9, 1999, as yet unreported, at paragraphs 23 to 27.) Counsel for the applicant also stated in response to the objection raised with respect to the timeliness of his submission by counsel for the responding party: “A copy [of the submission filed with the Board] was faxed to Mr. Russell at 5:10 p.m. In any event, the Union is not in [sic] prejudiced in any way whatsoever by any minor delay in receiving our motion for production.” Counsel for the applicant seems to be taking the position that the request was delivered to the responding party on January 24, 2000, even though it was sent to counsel for the responding party after 5 p.m. on that day.
4While the Board has the discretion to treat documents received after 5 p.m. as having been filed on the date they were received, that same discretion does not apply to the delivery of documents to a party. Rule 23 of the Board’s Rules of Procedure, which governs the date of delivery of documents to a party, differs significantly from Rule 13. 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….”
Thus, it is clear that the applicant’s request for an order was delivered to counsel for the responding party on January 25, 2000, and not on January 24 as directed by the Board. Counsel for the applicant did not request that the Board extend, by one day, the time for delivering the applicant’s request to the responding party. Under the circumstances, as the request for an order directing production was not delivered to the responding party within the time fixed by the Board’s decision of December 17, 1999, it should be dismissed, particularly where the applicant did not even seek to have the Board extend the time for delivery or provide any reason for not delivering the request to the responding party by the date fixed by the Board.
5Despite the late delivery of the request for an order of production to the responding party, I have reviewed the submissions in support of the request for a production order and the response filed by counsel for the responding party. Counsel for the applicant has requested in items 1, 2, 3 and 4 of his demand for production of documents the following documents in relation to the responding party’s hiring hall in Hamilton:
“1. Record(s) of offers of jobs, acceptances, refusals and dispatch Records for members of the Responding Party from November 5, 1997 to November 30, 1999…;
All job order and dispatch Records from November 5, 1997 to November 30, 1999…;
All out of work lists from November 5, 1997 to November 30, 1999…;
All work referral lists and job dispatch records from November 5, 1997 to date for the members dispatched….”
Counsel for the applicant submits that those records are relevant because they relate to the practice of the responding party’s hiring hall which is directly related to the issues before the Board in this application.
6The issue before the Board, as set out in the Board’s December 17, 1999 decision, relates to the propriety of the responding party’s referrals to three specific jobs in May, June and November 1998. The application is not a general enquiry into the manner in which the responding party has carried out the dispatch of its members over the last three years. I also note that the applicant has requested records relating to the dispatch of both mechanics and welders. The applicant is a mechanic, not a welder. The records relating to the dispatch of welders do not appear to be relevant. Furthermore, I note that counsel for the responding party stated in his submissions in response to the applicant’s request that: “The Responding Party has already provided the Applicant with the hiring hall records, and out of work lists, which specifically relate to the three relevant jobs.” I am prepared to accept that the responding party has already provided to the applicant the documents which its counsel says it has provided. In my opinion, to the extent that the documents requested in items 1, 2, 3 and 4 of the applicant’s demand for production go beyond the documents counsel for the responding party says have been produced, I decline to make any further order in respect of the documents set out in items 1, 2, 3 and 4 of the applicant’s demand for production.
7The applicant, in item 5 of his demand, requests production of minutes of the responding party’s meetings of May, June, July, August, and September, 1999 and the production of certain correspondence with the trustees of the Apprenticeship and Training Fund. The applicant contends that those minutes are relevant because they contain statements made by Ed Power who will be a witness at the hearing. There is nothing, in my view, that connects statements that may be recorded in minutes of meetings that occurred many months after the last job referral that is the subject of this application to the issues before me, which, once again, relate to three specific job referrals which were identified in the Board’s December 17, 1999 decision. There was also nothing in the applicant’s submissions connecting the trustees correspondence sought with any of the job referrals in issue. There is therefore no basis for ordering production of the documents listed in item 5 of the applicant’s demand for production.
8Item 6 of the demand seeks the production of the same documents that the applicant sought under items 1 to 4 of his demand, but limited to four and a third months (April, May, June, the last 10 days of November and December) in 1998. For the reasons set out earlier with respect to items 1 to 4, I decline to make any order for production of those documents.
9Items 7 (a) (i) and (ii) relate to dispatch records and field dues in respect of two specific individuals. Counsel for the responding party has indicated the circumstances under which those two named individuals were dispatched, despite his position that the records relating to those two persons are not relevant. Having reviewed the submissions of the applicant and the responding party on this issue, I am not persuaded that records relating to those two persons are relevant. If the applicant wishes to adduce evidence that those two persons were dispatched (or called for dispatch) ahead of the applicant contrary to the responding party’s hiring hall procedures, then he is free to do so. The responding party has agreed to produce the records relating to the dispatch of the three jobs in issue. That, in my view, is sufficient for the applicant to prepare for the hearing in this matter.
10The applicant did not deliver his request to the responding party within the time fixed by the Board’s decision, did not set out any grounds for his failure to do so nor did he request an extension of the time the Board had fixed for the delivery of the request for an order to the responding party. Furthermore, even if the request had been delivered to counsel for the responding party within the time fixed by the Board, I am of the opinion that the documents the responding party refuses to produce are not relevant to the issues in this application.
11The applicant’s request for an order requiring further production is, for the reasons set out above, dismissed.
“Harry Freedman”
for the Board