International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 721 v. Proka Ltd.
File No.: 2351-00-G Date: November 21, 2000 Before: Harry Freedman, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD
1This 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 November 9, 2000. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on November 9, 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 party by giving them to Priority Post Courier, Canada Post on November 8, 2000 who assured the applicant that they would be delivered on November 9, 2000 by no later than 12:00 p.m. The Registrar attempted to fax a Confirmation of Filing of a Referral of Grievance to Arbitration (Form B-67) to the fax number provided for the responding party in the application, (905) 616-4901 two times on November 9, 2000, and was unsuccessful each time. The Board then sent the Confirmation of Filing of a Referral of Grievance to Arbitration (Form B-67) to the responding party by courier on that day.
2Counsel for the applicant, by letter to the Board dated November 15, 2000, but only brought to the attention of the panel earlier today seeks to have the scheduled hearing of this matter and the officer's meeting with parties postponed. Counsel states in her letter:
It has come to our attention that the employer has not received the Referral of Grievance to Arbitration. It was sent by priority post on November 8, 2000 to the employer's last known address....At the time of delivery there was no one present at the employer's premises. The courier left a slip at the employer's place of business informing them that Canada Post was holding a package for the employer. It is our understanding that as of today the employer has not picked up the documents.
...We will attempt to serve the employer by hand and are requesting that the LRO and Hearing be rescheduled to a later date.
3As 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). We note that as of the date of this decision, there is no reason for the Board to find that the Form B-67 sent to the responding party by courier was not received.
4As noted in paragraph 1 above, the referral was filed with the Board on November 9, 2000. The referral material has not, as of the date of this decision yet been delivered to the responding party. (The date of delivery of a document, according to Rule 23 of the Board's Rules of Procedure, "...is the date that document is received by another party...", except where it is received by that other party after 5:00 p.m. or when it is sent by regular mail.) Thus, it is clear that the applicant filed its application with the Board before the application and other materials were delivered to the responding party.
5Rule 155 of the Board's Rules of Procedure provides, in part:
Before, or at the same time as, filing its application with the Board, the applicant must deliver the following to the responding party:
Thus, it is clear that the Board's Rules require that the applicant must deliver to the responding party (that is, the responding party must receive) the application and other requisite material before or at the same time as that application is filed with the Board. (In our opinion, an application that is delivered to the responding party and filed with the Board on the same day complies with Rule 155 since the Board considers the time an application was filed as being the day on which the application was filed. See Harnden & King Construction Ltd., [1987] OLRB Rep. Dec. 1510 at 1512; Bond Place Hotel, [1982] OLRB Rep. Aug. 1135 at 1137-38; Windsor Tube & Metal Inc., [1977] OLRB Rep. June 396.) That has not happened in this case.
6Under these circumstances, this matter cannot proceed to either a meeting with a Labour Relations Officer or a hearing, at least until the applicant advises the Board that the actual referral and other material required by Rule 155 have been received by the responding party.
7Should this matter proceed to a hearing after the applicant has effected delivery of the requisite material to the responding party, the applicant will be required to persuade the Board that it is advisable to exercise its discretion under Rule 44 and relieve against the strict application of the Rules before the Board proceeds to deal with the merits of the application.
8An applicant in a section 133 proceeding does risk a contravention of the Board's Rules and dismissal of its application for a failure to comply with the Rules if it files its application before it is certain that the necessary material has been delivered to, that is, received by the responding party.
9The applicant, if it wishes this matter to proceed further, must advise the Registrar when the responding party receives the application and other requisite material in this proceeding. In the interim this application will be adjourned sine die.
10Having regard to the foregoing, the Board hereby adjourns this application sine die. Unless the applicant advises the Board that the responding party has received the material required by Rule 155 and requests that the Board proceed with the matter within one year from the date of this decision, it will be deemed terminated without any further notice to the parties.
"Harry Freedman"
for the Board