Ontario Labour Relations Board
Parties
0286-97-R Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. 1115451 Ontario Inc. o/a Aztec Contracting & Restoration; Hogan Restoration Ltd., Responding Parties v. Operative Plasterers, Cement Masons’ and Restoration Steeplejacks’ of the U.S. and Canada, Local 598, Intervenor.
BEFORE: D. L. Gee, Vice-Chair.
APPEARANCES: Mike McCreary and Lister Tennant for the applicant; no one appearing for the responding parties; no one appearing for the intervenor.
DECISION OF THE BOARD; March 13, 2000
Reasons for Decision
1This is an application under sections 69 and 1(4) of the Labour Relations Act, 1995 (the "Act"). The responding parties and intervenor were provided with notice of the hearing but failed to attend. Thus, the hearing proceeded with no one participating on behalf of or otherwise representing the responding parties and the intervenor.
2The union called Lister Tennant, a business agent with the applicant since 1993, to testify.
3This is not the first time the Board has dealt with applications under these sections in the absence of the participation of some or all of the responding parties. It is, of course, neither the norm nor necessarily the preferred manner of proceeding. Sections 1(5) and 69(13) each place an important evidentiary burden upon responding parties. Typically, many if not most of the salient facts in these types of applications are within the specific and often exclusive knowledge of the responding parties. Thus, the Act constructs a process intended to insure that the Board can make its determination possessed of all of the relevant information. And where a responding party declines to discharge its statutory evidentiary burden, there will likely be consequences.
4Where a responding party opts not to appear it obviously does so at its peril. An applicant may, as was done in the present case, opt, rather than pursuing the responding parties’ attendance, to proceed in the absence of that party.
5The Board faced a similar scenario in the case of Delta Electric Eastern Limited, [1990] OLRB Rep. December 1259 and described its approach in these types of situations at paragraph 3:
- It is in the nature of proceeding[s] of this type that most of the relevant facts are uniquely within the knowledge of the respondents. Before subsections 1(5) and 63(13) were added to the Act, decisions of the Board regularly observed that the applicant had to introduce some evidence to support the underlying factual assertion that a transaction or relationship of the sort contemplated by section 63 or subsection 1(4) had taken place or existed. The decision often observed that applicants could summons officers of the respondent corporations to give evidence with respect to the relevant facts if that was necessary in order to put some such evidence before the Board. In those decisions the Board also observed, however, that very little evidence might be required to satisfy the evidentiary burden on a trade union applicant when the relevant facts were largely, if not exclusively, within the knowledge of the respondent employers: Woodway Structural Components, [1971] OLRB Rep. Aug. 545; and see Beaver Engineering Ltd., [1973] OLRB Rep. Jan. 57. Subsections 1(5) and 63(13) of the Act now impose a burden of adducing evidence on respondent employers but do not expressly alter the legal burden of proof. Where an applicant trade union chooses, as this one did, to proceed with the application in the absence of the respondent employers, rather than enforce compliance with the statutory burden and our confirming order, it appears to us that the applicant still must adduce some evidence to support the findings necessary for the application to succeed. The obvious intent of subsections 1(5) and 63(13), however was that the absence of information peculiarly within the knowledge of the respondent should not stand in the way of success. We have taken that intent into account assessing the weight be given to the evidence the applicant was able to provide in these circumstances.
6The evidence placed before us in this case was neither as comprehensive nor complete as one might have expected had we been favoured with the full participation of all of the responding parties. However, in the specific context of the Board’s comments set out in the Delta Electric decision just cited, the Board is satisfied that the applicant has certainly adduced "some evidence" to support the findings necessary for the application to succeed.
7Having regard to the oral evidence of Mr. Tennant and the documentary evidence placed before the Board, I am satisfied as to the following facts. Hogan Restoration Ltd. entered into a collective agreement with the applicant on October 2, 1991. The result of that document is that Hogan Restoration Ltd. is bound to the Carpenters’ Provincial Collective Agreement and the Carpenters’ residential collective agreement. Hogan Restoration Ltd. performed caulking work. Mr. Paul Gillis is an officer and the President of Hogan Restoration Ltd.. 1115451 Ontario Inc. o/a Aztec Contracting & Restoration, performs caulking work. Mr. Paul Gillis is the sole officer and director of the corporation and the sole listed signing officer. Mr. Tennant has had many discussions with Mr. Gillis in his capacity as sole owner of 1115451 Ontario Inc. c.o.b. as Aztec Contracting and Restoration Ltd.
8The evidence is sufficient to establish that Hogan Restoration Ltd. and 1115451 Ontario Inc. o/a Aztec Contracting & Restoration both performed caulking work and accordingly were involved in associated or related business activities. The evidence further establishes that Paul Gillis was an officer of both Hogan Restoration Ltd. and 1115451 Ontario Inc. o/a Aztec Contracting and Restoration such that they were carried on under common control and direction.
9Having regard to the evidence, the Board is satisfied and hereby declares:
(a) Hogan Restoration Ltd. and 1115451 Ontario Inc. o/a Aztec Contracting & Restoration constitute one employer for the purposes of the Act; and
(b) 1115451 Ontario Inc. o/a Aztec Contracting & Restoration is bound to the Carpenters Provincial ICI Collective Agreement as well as the Carpenters Residential Collective Agreement.
"D. L. Gee"
for the Board