Labourers’ International Union of North America, Local 183 v. Bayview-Wellington Construction Inc., 2000 CanLII 11771

File No.: 4395-98-R Date: September 11, 2000 Ontario Labour Relations Board

Before: David A. McKee, Vice-Chair.

1This is an application for reconsideration, pursuant to section 114 of the Labour Relations Act, 1995, S.O. 1995 ch.1, as amended. The responding party asks that the Board reconsider its decision of August 17, 2000. Its specific concern relates to paragraph 39 which states:

In the end this is a very difficult call. One witness we did not hear from was John Martini. He is still employed by Bayview-Wellington. Counsel submitted that Mr. Martini could not tell the Board anything about March 25 as his memory was unlikely to be better than anyone else’s. This is undoubtedly correct. However, he could have testified as to the type of work he assigned to Mr. Vangerven while he was working under him in March of 1999. No explanation was given for the failure to call him. On that basis I draw the inference that Mr. Martini’s evidence would not support that of Mr. Vangerven and therefore I must conclude that the evidence of the three employees is more likely accurate, on the balance of probabilities.

The responding party asserts that the second sentence is incorrect: Mr. Martini is not still employed by the responding party and has not been so employed since November 5, 1999.

2I am prepared to accept the proposition that I misinterpreted the position of the responding party with respect to Mr. Martini. The evidence was called in this portion of the case in fits and starts (to say the least). Both parties had difficulty in locating witnesses so long after the event and this no doubt contributed to the responding party’s decision not to pursue some of the challenges it made to the list originally. The hearing of evidence adjourned almost every day before the end of the day as the responding party had simply run out of witnesses. In the circumstances this did not trouble the Board or the parties.

3During the examination of Kelly Vangerven, the responding party indicated it intended to call Mr. Martini. I accept that the statement made was to the effect that he was available as a witness, not that he was employed by the responding party. However, it was clearly the intention of the responding party to call Mr. Martini. He was not present, so the Board was advised, on the day he was expected to be called because his wife had given birth earlier that morning. Indeed a representative of the responding party was able to speak to Mrs. Martini by telephone.

4Whether Mr. Martini was employed by the responding party was not the issue for the purposes of the original decision. What was important was that he was available and could have been called as a witness. Why this was so (i.e. continued employment or simply continued contact with the responding party) is not important on the facts of this case. Mr. Martini was available as a witness and the responding party had taken some steps to ensure his attendance at one point in the proceedings. In the end the responding party chose not to call him for reasons which I did not, and do not, accept as sufficient to invalidate the inference that I drew. Accordingly I am satisfied that the inference was properly drawn.

5The Board is prepared to reconsider the second sentence of paragraph 39 to state that Mr. Martini was available as a witness. However, this does not change the result. Accordingly the relief sought is denied, except to the extent indicated.

6The Manager of Field Services is directed to arrange for the counting of the ballots as previously directed.

“David A. McKee”

for the Board