Ontario Labour Relations Board
International Association of Bridge, Ornamental and Reinforcing Iron Workers, Local 786, Applicant v. Nickel City Steel Ltd., Cranehill Mining Services Inc., Responding Parties.
Before: M. A. Nairn, Vice-Chair.
Appearances: Gary Caroline for the applicant; Richard Drmaj and Michael Gregorini for the responding parties.
Decision of the Board: April 4, 2000
Decision
1These matters convened on March 24, 2000 pursuant to the Board’s direction in the decision dated March 3, 2000. There were outstanding production issues and the responding party was making a request to adjourn the hearing dates scheduled. The applicant was also seeking costs for the day.
2At the outset counsel for the responding parties made it clear that they were making no suggestion that the applicant or its counsel had breached the undertaking made not to use the documents disclosed by the responding parties, except for purposes of conducting the litigation. Any reference in earlier correspondence to Steel 2000 and the work that it was performing was to be ignored.
3The primary issue in these files is the section 69/1(4) application made in Board File No. 1048-98-R. There is a history of production orders made and attempts by the applicant to accommodate the responding parties in the face of a large production order.
4I heard from the parties with respect to the remaining issues arising from the production order in March 1999. To the extent that there was any lingering doubt as to the scope of that order as it related to documents of Nickel City Steel Ltd. (“Nickel City”), it was clarified. I note that such clarification should reasonably have been requested by the responding parties following the parties’ attempts over the summer and into September 1999 to have the issue of production dealt with.
5The responding parties supplied the following information in respect of certain matters covered by the order for production:
(a) There are no invoices for Cranehill Mining Services Inc. (“Cranehill”) jobs in 1997 although there is an acknowledgement that Cranehill performed work in 1997.
(b) Cranehill has had only one bank account since 1997. The account number is referred to on a copy of a cheque produced.
(c) A copy of a Cranehill letter of credit has been produced to date.
(d) Cranehill does not own or lease any trucks. The only assets owned by Cranehill are those that are listed in the attachment to the line of credit. Insurance documents produced reflect the ownership of the assets insured thereunder.
(e) The only employees of Cranehill in 1997 are those referenced in the payroll records supplied for September to December 1997. Payroll records supplied provide the names of employees of Cranehill in 1998 and up to the end of August 1999.
(f) The commercial insurance policy (dated November 2, 1998) produced at Volume 3 (k) is the renewed policy for Cranehill.
(g) The control sheets and other supporting documents for Cranehill produced are the only ones which exist up to 1999. No such records exist for 1996 or 1997.
(h) There are no additional Cranehill documents relating to Revenue Canada other than what has been produced to date for Cranehill.
(i) There are no minutes of any shareholder of directors meetings of Cranehill subsequent to June 27, 1997.
(j) Mr. Mike Gionet, the General Manager of Cranehill, performs the estimating, scheduling, dispatching, and supervisory duties for Cranehill. The accounting, payroll, accounts payable and receivable services for Cranehill are provided under a separate financial consultancy arrangement with Mr. Belrose. The actual work is performed by the same persons who perform these financial services for Nickel City.
(k) Leon Anstey has recently replaced Mr. Belrose.
(l) There are no longer any daily time sheets for employees of Cranehill from 1996 to 1998 inclusive.
(m) There are no contracts of employment with employees. All of the payroll records relating to Mr. Robert McFadden have been produced.
(n) The list of supplier accounts at tab 2(e) of the materials filed in the response represent the supplier accounts for Nickel City. Nickel City and Cranehill use the same suppliers.
(o) The financial statement for Nickel City for 1999 is not complete as yet.
6There remain a number of documents that have not been produced. These are arguably relevant and material to the issues before me. During the hearing these matters were reviewed with the responding parties so that there would be no confusion as to what was required by the order for production. The following material is to be produced by the responding parties and/or by the principals of each, by no later than April 7, 2000. This confirms the order made at the hearing that this material is to be produced to the Board unless the parties can agree to some other acceptable and reasonable method for review by the applicant.
7Cranehill Mining Service Inc. and its principal Guglielma Gregorini are hereby directed to produce to the Board by no later than April 7, 2000 (subject only to other arrangements agreed to by the parties) the following documents:
(1) Copies of any loan agreements, an executed copy of any line of credit, any general security agreements and guarantees.
(2) A list of all jobs performed by Cranehill Mining Services Inc. (“Cranehill”) in 1996, 1997, 1998, and 1999.
(3) A copy of any commercial insurance policy in effect prior to November 2, 1998.
(4) Control sheets and all supporting documentation relating to any job performed by Cranehill during 1999.
(5) Financial statements for 1996, 1997, and 1998.
(6) Any daily time and material sheets used to record workers’ hours on a daily basis for work performed by Cranehill in 1999.
(7) A copy of the unopened envelope containing the T-4 slip addressed to Bobby Lamontagne and apparently returned.
8Nickel City Steel Ltd. and its principal Sirio Gregorini are hereby directed to produce to the Board by no later than April 7, 2000 (subject only to other arrangements agreed to by the parties) the following documents:
(1) Invoices or contracts for all construction and/or field work and for all shop work performed by Nickel City Steel Ltd. (“Nickel City”) from January 1996 to date; time sheets and daily logs for all construction and/or field work performed by Nickel City in 1997.
(2) All documents describing mortgages, loans, lines of credit, guarantees or security provide to or obtained from any financial institution since January 1, 1997.
(3) The license plate numbers of all pick-up trucks owned, leased or rented by Nickel City.
(4) Records of all annual and periodic Revenue Canada, Employer Health Tax, Workers Compensation, or Workers Safety and Insurance Board, and Ministry of Revenue (Ontario) contributions, reconciliations, or reports for the period 1997-1999 inclusive.
(5) The lease for 1351 Kelly Lake Road.
(6) Financial statements for Nickel City for 1997.
(7) If there are bank accounts other than the one disclosed in the material already produced, the account numbers and locations of any such account from 1997 to the present.
9The entities or persons against whom these production orders have issued need understand that a failure to comply with the order may result in a request that the Board state a case for contempt pursuant to the Statutory Powers Procedure Act. Should the Court subsequently find that the failure to comply is punishable in like manner as contempt of that Court, remedies including fines and/or imprisonment are available to be imposed. The original production order against the corporate entities issued in March 1999, both at the hearing on March 1, 2000 and confirmed by decision dated March 9, 1999. It was further confirmed by a decision of the Board on August 30, 1999. The issue of production was dealt with again by decision dated March 3, 2000 pursuant to a request by the applicant to consider the contempt issue. While the responding parties took the position that they understood the order to be narrower, they did not attempt to seek clarification until pressed. It should be abundantly clear at this stage that any further non-compliance cannot reasonably be attributed to anything but a refusal to comply with the order.
10These matters were scheduled to continue on March 30, 31, April 18, 19, 20 and May 16, and 17, 2000. The responding parties initially sought an adjournment of all of those dates. At the hearing however, the request was to adjourn the dates of March 30 and 31, 2000 based on the medical condition of Mr. Sirio Gregorini, and then to review prior to the upcoming days his ability to participate in the hearing. The medical evidence submitted indicated that Mr. Gregorini suffers from diabetes, hypertension, and elevated cholesterol levels. An open-ended adjournment was opposed by the applicant noting that these matters had already been considerably delayed and noting that the medical evidence suggested that not participating in the hearing appeared to be the main treatment program. There was no indication of any prognosis as to when, if ever, that might change. Having heard the representations of the parties, I made the following ruling. I was not satisfied that Mr. Sirio Gregorini was the only individual capable of acting as advisor to counsel. However I was satisfied that in the circumstances it was appropriate to grant a short adjournment in order that counsel could properly meet with a new advisor. That would also provide enough time to ensure that the remaining production issues were dealt with and that there would be no further procedural delays arising from that issue. The hearing dates of March 30 and 31, 2000 were therefore adjourned.
11The hearing in these matters will reconvene on April 18, 2000. The responding parties will be expected to proceed. If there is a request for an adjournment during the course of the proceedings arising out of an issue of whether Mr. Sirio Gregorini is fit to attend as a witness, that matter will be addressed at that time. I made it clear to the responding parties that the medical evidence submitted in support of this request would likely not be sufficient to satisfy a subsequent request. I would also at that time hear submissions as to whether or not it was appropriate in the circumstances to proceed based on the best evidence then available.
12The hearing date of May 16, 2000 was adjourned on the agreement of the parties. I declined to entertain the applicant’s request for costs.
13These matters are now scheduled to proceed on April 18, 19, 20, May 17, July 10, and 11, 2000. This panel is seized.
‘M. A. Nairn’
for the Board