Carpenters and Allied Workers, Local 27 United Brotherhood of Carpenters and Joiners of America v. Enka Contracting Limited, 2000 CanLII 11102

Carpenters and Allied Workers, Local 27 United Brotherhood of Carpenters and Joiners of America v. Enka Contracting Limited and Malvern Contract Interiors Limited, J. Luck Installation

0246-99-R Carpenters and Allied Workers, Local 27 United Brotherhood of Carpenters and Joiners of America, Applicant v. Enka Contracting Limited and Malvern Contract Interiors Limited, J. Luck Installation, Responding Parties.

1204-99-G Carpenters and Allied Workers, Local 27 United Brotherhood of Carpenters and Joiners of America, Applicant v. Enka Contracting Limited and Malvern Contract Interiors Limited and J. Luck Installation, Responding Parties.

1205-99-G Carpenters and Allied Workers, Local 27 United Brotherhood of Carpenters and Joiners of America, Applicant v. Enka Contracting Limited and Malvern Contract Interiors Limited and J. Luck Installation, Responding Parties.

BEFORE: Marilyn Silverman, Vice-Chair.

APPEARANCES: Norman L. Jesin and L. Hanecak for the applicant; Roy Filion, Paul Harrison, Harvey Watson and Bruce Luck for the responding parties.

DECISION OF THE BOARD; April 3, 2000

1This is an application filed under subsection 1(4) and section 69 of the Labour Relations Act, 1995 (the “Act”) as well as two applications filed under section 133 of the Act.

2The responding party concedes that Enka Contracting Limited and Malvern Contract Interiors Limited were operated under common control and direction but its position is that based on the facts of this case the Board should not exercise its discretion to issue a declaration under subsection 1(4).

3By letter dated October 27, 1999 counsel for the applicant requested an order for production of documents. The letter requested the following:

1. Documents reflecting the shareholders, directors, and officers of each responding party.

2. Documentation including contracts, sub-contracts, invoices, purchase orders or any other documents reflecting job sites and contracts for each job performed by each responding party in the last two (2) years.

3. Documentation reflecting the names of all employees, whether or not in the relevant the bargaining unit, employed by each responding party in the last two (2) years.

4. Documentation reflecting the extent of common ownership by the responding parties of any assets including but not limited to, equipment, leases, real property, personal property or any other assets.

4By decision dated November, 1999 the Board (differently constituted) directed the responding party to produce relevant documents in advance of the hearing.

5At the first scheduled day of hearing in this matter, March 21, 2000, the responding party requested that the Board reconsider this order on the basis that it was too broad. The responding party asserted that the productions should be restricted to the jobs alleged to be performed in violation of the collective agreement.

6Having regard to the circumstances and the statutory disclosure obligations in these types of cases, I saw no reason to vary the November 1, 1999 production order. The parties then embarked upon an agreed upon procedure for the production and copying of the documents.

7On March 27, 2000 at the date and time scheduled for the continuation of the hearing the parties sought further direction from the Board regarding the issue of production of documents. The responding parties do not object to the production and in fact had made the documents available for inspection to the applicant on March 24, 2000 at the responding parties’ premises. The issue to be dealt with is the confidentiality concerns of the responding parties with respect to these documents.

8Having heard the submissions of the parties, I hereby order that the productions are to be made to counsel for the applicant by April 7, 2000. Any pricing or costing information may be blanked out on the documents provided. The documents are to be kept confidential by the applicant and to be used only and exclusively for the purpose of this litigation. They are to be kept in the custody of counsel for the applicant. At the conclusion of the hearing all documents and copies (with the exception of exhibits entered by the Board) are to be returned to counsel for the responding party.

9Finally, the responding party requests that two aspects of the case be dismissed on a prima facie basis. These matters may be dealt with at the commencement of the next day of hearing or if the responding party provides its written submissions to the applicant and the Board one month prior to the next scheduled date of hearing the applicant shall be required to respond to those submissions within two weeks of that date. The responding party shall then have one week from the date of that response to reply to the applicant’s submissions. I will then make a determination on the prima facie motions.

10The hearing is scheduled to continue on July 11, 13, 14, 17 and 21, 2000, commencing at 9:30 a.m. at the Board’s premises, 2nd Floor, 505 University Avenue, Toronto, Ontario.

“Marilyn Silverman”

for the Board```