Industrial Wood & Allied Workers of Canada, and its Local 700 v. Wilson’s Truck Lines Limited, Wilson Logistics Inc., and Supply Chain Express Inc., 2000 CanLII 11947

Ontario Labour Relations Board

File No.: 2990-99-R Date: April 28, 2000

Between: Industrial Wood & Allied Workers of Canada, and its Local 700, Applicant v. Wilson’s Truck Lines Limited, Wilson Logistics Inc., and Supply Chain Express Inc., Responding Parties.

Before: David A. McKee, Vice-Chair.

Decision of the Board

1The Board is in receipt of correspondence from counsel in the above noted matter in response to the decision of April 4, 2000.

2The applicant has chosen to compress the process set out in the April 4, 2000 decision and set out both particulars and documents it wishes to be provided with in advance of the hearing. While one would have thought that a party would have preferred to know the facts alleged by the parties opposite before compiling a complete list of documents, it is up to counsel rather than the Board to determine the course adopted by a party.

3More serious is the applicant’s sparseness of pleadings. The Board agrees with counsel for Supply Chain Express Inc. (“Supply Chain”) that neither it nor the Board should be required to guess at the relief sought. The Board is prepared to treat the various letters setting out allegations as additions to and amendments of the original application. This practice is sufficiently common and well known that counsel’s submissions about the lack of allegations in the Form A-24 and the Schedules thereto are of no weight. Counsel is correct, however, in asserting that no relief is sought. The Board will proceed (as it did in the April 4 decision) on the basis that a section 69/1(4) application seeks as relief a declaration that two or more entities are one employer for the purposes of the Act, or that there has been a sale from Wilson’s to the other responding parties. The balance of this decision is written on the basis that there is no other relief sought.

4The applicant is directed to set out in writing all of the relief sought as against all responding parties, and in particular what relief is sought in respect of the alleged collective agreement between Supply Chain and the Canadian Merchandising Employees Union. If relief in respect of that collective agreement is sought only in Board file 3843-99-U (as seems appropriate), the applicant is directed to set out in writing what the impact of that relief should, in its view, have on this application.

5Counsel for Supply Chain has requested that the application be dismissed as against it for various reasons, primarily relating to the sparse pleadings. The arguments made are similar to those made in Guaranteed Insulation ‘77 Limited [1981] OLRB Rep. Oct. 1394, and are rejected for the same reasons that they were rejected in that decision.

6Both counsel for the responding parties have expressed some concern about the confidential nature of the documents sought. The production of any document in this process is subject to the “implied undertaking” rule. To be more explicit, the Board orders the applicant, its counsel, officers, agents, employees, members, or nominees to retain all copies of these documents (except as may be made for the purposes of the hearing) and not to distribute them to third parties, not to divulge any information contained in any of these documents to anyone except for the purposes of this litigation, and not to use the information contained in them for any purpose except the conduct of this litigation. The applicant is reminded that this is an Order of the Board which may be filed in the Superior Court of Justice and enforced as such. In producing these documents, the responding parties may chose to obscure the dollar figures for certain types of contracts. If counsel demands to see those figures, he shall be given the information within three days of his request on the condition that if he believes that the dollar figures are relevant to an issue in the proceeding he shall advise the responding parties of this fact. If it is necessary for him to divulge this information to his client or to a third party prior to the hearing, he shall advise counsel to the responding parties of the person(s) to whom he intends to divulge it and the purpose for doing so. The Board anticipates that counsel will have a need to discuss the information with his client, but should ascertain first which figures are necessarily to be disclosed and which are not worth pursuing. If the responding parties object to this disclosure, before counsel makes such disclosure, this dispute will be dealt with by this panel of the Board, preferably by conference call at the end of a day.

7The production orders which follow are based on the request of the applicant and the response of all three responding parties. For example, some of the documents required to be produced from Supply Chain are disclosed in the response of Wilson’s Truck Lines Limited (“Wilson’s”) and Wilson’s Logistics Inc. (“WLI”). In doing so, the Board has used wording which is, on occasion, more extensive than that used by the applicant. This is not because the Board feels any obligation to assist one party or the other. The Board has an interest in ensuring that hearings are conducted, within the limits set by the pleadings, in an efficient and orderly fashion. The point of pre-hearing production orders is to eliminate wasted hearing time (of which the Board has a limited supply) and to avoid hearings that cover the same evidentiary points repeatedly, because the existence of documents is disclosed only in cross examination, and must be produced at a later date.

8In the April 4, 2000 decision, the Board contemplated a two-stage process which would end with the production of documents on June 13, 2000. Since the parties have collapsed that procedure, Supply Chain Express Inc. is directed to produce the following documents and particulars to counsel for the applicant on or before 5:00 p.m. May 25, 2000:

1. Copies of all contracts, subcontracts and other documents (supplementary contracts, memoranda, correspondence, etc.) which make up the contractual relationship between Supply Chain, Wilson Logistics and Wilson’s;

2. If the contractual relationships are defined in a series of invoices or purchase orders which exceed 150 pages, Supply Chain is to produce sample invoices or purchase orders to the applicant and, if requested, provide counsel only with the opportunity to review all invoices within four days of his request;

3. Particulars of the manner in which drivers for Supply Chain were recruited, interviewed and selected;

4. Any documents, including but not limited to applications, correspondence, information provided to prospective drivers, and interview notes, created during the “preliminary interviews” conducted by WLI for Supply Chain with any personal information (addresses, SIN, etc.) obscured in such a manner that the nature of the information obscured is indicated, and any communication from WLI to Supply Chain in respect of such interviews

5. Copies of any advertisements, correspondence to any third party soliciting applications for employment and copies of all applications for employment (with personal information such as addresses, SIN, etc. obscured in a manner which indicates the nature of the information obscured) and other documents relating to the hiring of employees of Supply Chain, and any documents including contracts, invoices, requests for service, correspondence and any other document creating or governing the provision of services from WLI in respect of such hiring;

6. Copies of all ownership, licensing, leasing, or other title documents with respect to equipment used by Supply Chain, and any purchasing agreements with respect to such equipment;

7. Copies of all documents relating to the insuring, maintenance, servicing, fuelling and public licensing of equipment used by Supply Chain, except to the extent that such work is done by employees of Supply Chain;

8. Any document relating to the use of equipment used by Supply Chain for the Sobey’s contract or deliveries;

9. All contracts, subcontracts, invoices, requests, purchase orders, memoranda, correspondence, or other document relating to delivery services performed by Supply Chain for or on behalf of Sobey’s or to a location controlled by Sobey’s;

10. all documents relating to proposals to provide services for Sobey’s, including tenders, proposals, correspondence, bids, or other such documents;

11. All contracts, subcontracts, invoices, requests, purchase orders, memoranda, correspondence, or other document relating to delivery services performed by Supply Chain for any third party other than Sobey’s;

12. Copies of all licences or statutorily required authorities relating to the provision of trucking services by Supply Chain;

13. Copies of all ownership or title documents, leases or licenses for any premises occupied or used by Supply Chain;

14. Corporate minute books, including application for/articles of incorporation, directors’ ledger, shareholders’ ledger, minutes of meetings of shareholders and directors, bylaws and resolutions, including banking and borrowing resolutions, of Supply Chain;

15. Particulars of the dispatching procedure used for vehicles used in deliveries for or on behalf of Sobey’s by Supply Chain, any contracts or written agreements with any third party in respect of such deliveries, and any other document or correspondence in relation to such deliveries. If this third category includes numerous documents produced on a daily basis (e.g. a delivery notice to each driver) Supply Chain is to produce samples to the applicant and, if requested, provide counsel only with the opportunity to review all invoices within four days of his request;

16. Particulars of any deliveries by or on behalf of Sobey’s effected by Supply Chain through the use of subcontractors or other third parties, the identities of such third parties/subcontractors, and the contractual or other documents created as a result of such subcontract or arrangement.

9Wilson Logistics Inc. and Wilson’s Truck Lines Limited are directed to produce to counsel for the applicant on or before 5:00 p.m. on May 25, 2000 the following:

1. Particulars of the administrative, consultative and management services provided by WLI to its clients. WLI is also to supply particulars of the kind(s) of industries in which those clients (other than Supply Chain) operate. The Board is not prepared at this time to require WLI to identify its clients. If, after May 25, the applicant wishes to make submissions as to the relevance of the identities of those clients, it may do so either in writing or at the hearing of this application;

2. Copies of all contracts, subcontracts and other documents (supplementary contracts, memoranda, correspondence, etc.) which make up the contractual relationship between Supply Chain, Wilson Logistics and Wilson’s;

3. All documents creating or governing the legal relationship between WLI and Supply Chain, including but not limited to the Agreement dated December 21, 1999;

4. Any documents, including but not limited to applications, correspondence, information provided to prospective drivers, and interview notes, created during the “preliminary interviews” conducted by WLI for Supply Chain with any personal information (addresses, SIN, etc.) obscured in such a manner that the nature of the information obscured is indicated;

5. A copy of the newspaper advertisement seeking truck drivers with an A,Z licence;

6. A copy of the written request made by Supply Chain to WLI with respect to the conduct of such interviews;

7. Copies of all ownership, licensing, leasing or other title documents with respect to equipment owned by Wilson’s or WLI which is operated by Supply Chain;

8. Copies of all contracts, subcontracts, invoices, requests for service, correspondence or other documents which constitute the legal relationship, be it contractual or otherwise, between WLI and Sobey’s;

9. Copies of all proposals, counter-proposals and draft contractual or other documentation which formed part of the negotiations between WLI and Sobey’s which led to the establishment of the contractual or legal relationship referred to in sub-paragraph (8) above;

10. Copies of corporate minute books, including application for/articles of incorporation, directors ledger, shareholders’ ledger, bylaws and resolutions, including banking and borrowing resolutions, of Wilson’s and WLI;

11. Copies of all contracts, subcontracts, invoices, requests for service, correspondence or other document creating or governing the legal relationship between Wilson’s and WLI, including but not limited to the Agreement dated March 28, 1999.

10I remain seized of these matters until the hearing of them.

“David A. McKee”

for the Board