3299-99-G International Union of Bricklayers and Allied Craftworkers, Local 2 (now known as Brick and Allied Craft Union of Canada, Local 2), Applicant v. 620230 Ontario Inc. o/a TS Masonry, Tony Sica Masonry Inc. and VMS Masonry (1996) Ltd., Responding Parties.
BEFORE: Harry Freedman, Vice-Chair, and Board Members G. Pickell and G. McMenemy.
DECISION OF THE BOARD; February 25, 2000
The style of cause is hereby amended to reflect the correct name of the applicant: "International Union of Bricklayers and Allied Craftworkers, Local 2 (now known as Brick and Allied Craft Union of Canada, Local 2)". Although this application was originally filed by the International Union of Bricklayers and Allied Craftworkers Ontario Provincial Conference (now known as Brick and Allied Craft Union of Canada) and International Union of Bricklayers and Allied Craftworkers, Local 2 (now known as Brick and Allied Craft Union of Canada, Local 2), counsel for the applicant advised the Board by letter dated February 9, 2000 that the International Union of Bricklayers and Allied Craftworkers Ontario Provincial Conference (now known as Brick and Allied Craft Union of Canada) is no longer an applicant and the only applicant is International Union of Bricklayers and Allied Craftworkers, Local 2 (now known as Brick and Allied Craft Union of Canada, Local 2)
This is a referral of a grievance to the Board for determination under section 133 of the Labour Relations Act, 1995, S.O. 1995, c. 1, (the “Act”). The referral was made on February 7, 2000. The accompanying Certificate of Delivery (Form A-86) states that the responding parties were served on February 7, 2000 by the applicant having delivered a copy of the necessary documents required by Rule 155 of the Board’s Rules of Procedure to the responding parties by giving them to Purolator Courier on February 4, 2000 who assured the applicant that they would be delivered on Monday, February 7, 2000 by no later than 12:00 noon. The Registrar delivered a Confirmation of Filing of a Referral of Grievance to Arbitration (Form B-67) to the responding parties by courier by giving it to Purolator Courier on February 11, 2000, so that it would be delivered not later than February 14, 2000.
As of the date of this decision, the responding party has not filed a Request for Hearing and Notice of Intent to Defend/Participate (Form A-87). The Board’s Rules of Procedure explicitly stipulate the consequences of failing to comply with the filing requirements contained in the Rules.
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(10) and (12) to (20) apply with necessary modifications to the Board and to the enforcement of the decision of the Board.”
- In addition, the Chair of the Board has the authority to make rules
to give effect to the various statutory powers conferred upon the Board. Section 110(17) of the Act provides:
“The chair may make rules governing the Board’s practice and procedure and the exercise of its powers and prescribing such forms as the chair considers advisable.”
Furthermore, 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 only thing a responding party must do to avoid default proceedings 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-67). 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 which is not due until 9:30 a.m. on the day set for hearing.
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.”
- The Board’s Rules deal specifically with the consequences of failing to file the Form A-87. 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 and file 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.”
Accordingly, we shall proceed on the basis that all of the allegations of fact set out in the referral to the Board and in the grievance material have been accepted by the responding party and therefore can be relied on by the Board in making a determination of this matter. The Board therefore finds that:
a) pursuant to the Board’s decision in Board File Nos. 4197-98-R and 0035-99-G, the responding parties constitute one employer for purposes of the Act and are bound to the Provincial Collective Agreement between the applicant and its employee bargaining agency and the Masonry Industry Employers’ Council of Ontario, expiring May 1, 2001 (the “Collective Agreement”);
b) the responding parties have been performing masonry work that comes within the scope of the Collective Agreement within the geographic jurisdiction of the applicant at the Mother Theresa School in Ajax and at the Rouge North School in Markham;
c) the responding parties have violated the Collective Agreement by failing to pay proper wages to employees in the form, manner and amount required by the Collective Agreement and by failing to make all contributions, deductions, and remittances in the form, manner and amount required by the Collective Agreement;
d) the applicant and its members have suffered damages in the amount of $25,458.68.
- The applicant, in its application, after setting out all of the facts upon which it relied in support of its application at section 7, indicated in the first paragraph of section 8 of the application, in response to the question “If the responding party fails to file a Request for Hearing and Notice of Intent to Defend/Participate, are you asking the Board to determine the referral without a hearing and with reference only to the material filed by you?” yes. The second paragraph of section 8 states: “If the answer is Yes, please describe in detail what you wish the Board order and the facts that support such order(s):” The applicant has left that blank. Subsequently, the applicant, by letter dated February 9, 2000 to the Board (and copied to the responding parties) requested that section 8 of the application be amended by adding the following paragraph:
“In the event that the responding party fails to file a request for hearing and Notice of Intent to Defend/Participate in the manner required by the Board’s rules, the applicant requests that the Board grant, without a hearing, all of the relief requested which is enumerated above in this Referral of Grievance to Arbitration, and in support of this request the applicant relies upon all of the material facts provided above in paragraph 7 of this Referral of Grievance to Arbitration.”
As the request for the amendment to the application was made promptly after it having been filed with the Board, the application is hereby amended as requested by the applicant.
- The applicant requested that the Board issue several declarations and orders. Having regard to the Board’s findings at paragraph 11 above, the Board:
a) declares that the responding parties are bound to the Provincial Collective Agreement between the applicant and its employee bargaining agency and the Masonry Industry Employers’ Council of Ontario, expiring May 1, 2001 (the “Collective Agreement”);
b) declares that the responding parties violated the Collective Agreement;
c) declares that the violations of the Collective Agreement by the responding parties have caused the applicant on its own behalf and on behalf of its members to have suffered damages in the amount of $25,458.68;
d) directs the responding parties to pay to the applicant forthwith the sum of $25,458.68 together with the sum of $1,500.00 for costs.
- The hearing in this matter scheduled for March 2, 2000 is hereby cancelled in view of the Board’s determination of this matter.
“Harry Freedman”
for the Board