2007-00-G Universal Workers Union, Labourers’ International Union of North America Local 183, Applicant v. Plastina Investments Limited, Responding Party.
BEFORE: David A. McKee, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; November 16, 2000
- This is an application for the referral of a grievance to arbitration pursuant to section 133 of the Labour Relations Act, 1995 S.O. 1995 ch. 1 (the "Act"). The Board has received correspondence from the applicant asserting that the responding party has failed to comply with paragraph 11(d) of the Board’s decision of October 17, 2000. Unfortunately this letter was not delivered to the responding party. The Board’s concern in dealing with requests not contained in the original application is one which relates to the rules of natural justice. A responding party is put on notice by the Registrar’s Confirmation of Filing that certain consequences may flow from the failure to file a Notice of Intent to Defend. No such notice from the Board accompanies any subsequent correspondence from the applicant. As the Board said in a previous decision:
If the applicant had pleaded that this is the union’s calculation of the amount owing, and asked for an order requiring the responding party to pay the amount of $16,408.85 forthwith, the Board would likely have granted the applicant’s request. The document attached, whatever it is, sets out a calculation of contributions owing. There is no statement of what the basis of these calculations is. By itself, it has little probative value. However, in the face of a refusal to respond by the responding party in circumstances where the responding party has been warned by the Board that it may decide the application on the basis of the facts alleged in the application, that document becomes essentially an admission by the responding party that the amount claimed is owing. Where the assertion is not made clearly or coherently, the Board cannot conclude that the responding party is in fact making such an admission. That is the essential element that is missing from a review of the application at this stage.
The letter of November 10, 2000 does make the applicant’s assertion clearer, although simple declaratory sentences would be more useful. That is the Board would be more comfortable with an explanation of what the “spreadsheet” actually is. However, this letter was not copied to the responding party. Even if it had been, the Board cannot give weight to it at this stage. Rule 160 refers to the material in the application, not to subsequent documents. Even if the letter had been sent to the responding party it would not have been accompanied by notice from the Board that the facts contained in the letter might be relied upon by the Board if no response is made. When an applicant seeks to rely on rule 160 it must include all of the necessary information in the application, and may not rely on subsequently filed documents.
The Board is sensitive to the appearance that it is being overly technical in its response to the applicant’s request. The process under section 133 is designed to provide quick and expeditious decisions respecting grievances about which there is very little controversy. Rules 160 to 162 are intended to further that objective, and to reduce the cost to the parties and the Board in doing so. However, the Board must not lose sight of the need to render decisions that will withstand the most vigorous legal scrutiny, particularly where the decision is made on a default basis. Grievances need not and often should not be drafted with this kind of legal precision. A section 133 application should be. The Board expects parties who draft pleadings which seek to rely on these rules to meet this level of precision, even in routine and likely undisputed applications.
In this case there is no hearing scheduled in the future. Nor is it apparent that requiring the applicant to attend at hearing to prove the statements set out in the letter would be more than a waste of time and expense. Accordingly, the Board directs the applicant to deliver to the responding party a copy of its letter of November 14, 2000 and a copy of this decision on or before November 20, 2000.
The responding party is advised that a failure to respond to or contradict the assertions of the applicant may result in the referral being decided without a hearing and without further notice to the responding party on the basis only of the applicant’s submissions. If the responding party wishes to dispute the applicant’s assertions it must file a Notice of Intent to Defend with the appropriate filing fee. The responding party must do so on or before 5:00 p.m. on November 27, 2000.
This panel is not seized of this matter.
“David A. McKee”
for the Board