Sheet Metal Workers’ International Association, Local 473 v. R & A Sheet Metal Ltd.
2885-99-G Sheet Metal Workers’ International Association, Local 473, Applicant v. R & A Sheet Metal Ltd., Responding Party.
BEFORE: M. A. Nairn, Vice‑Chair., and Board Members J.G. Knight and G. McMenemy
DECISION OF THE BOARD; January 6, 2000
This is a referral of a grievance to the Board for determination under section 133 of the Labour Relations Act, 1995 (the “Act”). The referral was made on December 21, 1999. The Certificate of Delivery (Form A-86) that accompanied the referral states that the applicant served the responding party with the documents required by Rule 155 of the Board’s Rules of Procedure by providing such documents to Priority Post on December 17, 1999 and being advised that the material would be delivered no later than December 20, 1999. The Registrar of the Board sent a Confirmation of Filing of a Referral of Grievance to Arbitration (Form B-67) to the responding party by facsimile transmission at (519) 743-3608 on December 22, 1999.
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).
Section 133 of the Act provides in part:
133 (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.
- 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, an 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 is required to file in order to avoid default proceedings).
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).
In order to avoid default proceedings, a responding party need only complete and deliver the Form A-87 that is included in the materials from the applicant. Delivery must be to the applicant and to the Board 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 the against the grievance referral. The substance of the defence is contained in the response which is not due to be filed until 9:30a.m. on the day set for hearing.
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:
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.
162, 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 and in the grievance material have been accepted by the responding party and can be relied on by the Board in determining this matter. The Board finds therefore:
R & A Sheet Metal Ltd. is bound to the Collective Agreement between the Ontario Sheet Metal and Air Handling Group, the Sheet Metal Workers; International Association and the Ontario Sheet Metal Workers’ and Roofers’ Conference, effective May 1, 1998 to April 30, 2000 (“the Collective Agreement”).
For the period of June, 1998 to August, 1998 inclusive, R & A Sheet Metal Ltd. had members of SMWIA, Local 473 in its employ working under the Collective Agreement.
The responding party made no contributions as required by Articles 33, 34, and 35 of the body of the collective agreement and Clause 18 of Appendix D – London Area for the months of June, July and August, 1998 for work performed in connection with the Loblaws site at Richmond Street and Fanshawe Park Road and at the Whiteoaks School site, both in London, Ontario. The required contributions amount to $6160.37.
The Lieutenant Governor in Counsel has established a schedule of fees to be charged to parties in proceedings pursuant to section 133 of the Act and, pursuant to such schedule, the applicant paid $214.00 in order to file its referral with the Board.
In light of the Board’s findings above, we hereby:
declare that R & A Sheet Metal Ltd. is bound by the collective agreement between the Ontario Sheet Metal and Air Handling Group, the Sheet Metal Workers; International Association and the Ontario Sheet Metal Workers’ and Roofers’ Conference, effective May 1, 1998 to April 30, 2000 (“the Collective Agreement”).
declare that R & A Sheet Metal Ltd. violated the collective agreement by failing to pay the contributions required by Articles 33, 34 and 35 of the collective agreement and Clause 18 of Appendix D – London Area.
order R & A Sheet Metal Ltd. to pay to the applicant the amount of 6160.37 as damages and $214.00 in costs forthwith.
- The hearing scheduled for January 11, 2000 is hereby cancelled.
“M. A. Nairn”
for the Board