Ontario Labour Relations Board
File No.: 2403-98-R; 2405-98-G Date: September 22, 2000
International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 721, Applicant v. Big “B” Steel Erectors Inc., 1246074 Ontario Limited, c.o.b. as Sunset Construction, Spud Erectors Inc., Responding Parties.
BEFORE: David A. McKee, Vice-Chair, and Board Members J. G. Knight and A. Haward.
APPEARANCES: M. Gottheil for the applicant; T. Hawtin for Spud Erectors Inc.; no one appearing for Big ‘B’ Steel Erectors Inc. or 1246074 Ontario Limited c. o. b. as Sunset Construction
DECISION OF THE BOARD; September 22, 2000
Reasons for Decision
These are two applications, one brought pursuant to sub-section 1(4) of the Labour Relations Act, 1995, S. O. 1995 ch. 1 ("the Act") and the second a referral of grievance to arbitration pursuant to section 133 of the Act. The applications were filed on October 13, 1998. Their progress has been considerably delayed by the refusal of two of the responding parties to participate in the process, notwithstanding numerous directions by the Board.
On December 15, 1999 the Board issued a decision directing the responding parties Big “B” Steel Erectors Inc. (Big “B”) and 1246074 Ontario Limited, c.o.b. as Sunset Construction (“Sunset”) to produce certain documents. These were set out in some detail in paragraph 8 of that decision. The reason for that direction is set out in the decision. The heart of these applications is the allegation that the responding parties carry on associated or related activities or businesses under common control or direction or that there has been a sale or transfer among them. The legislature long ago recognized that in such applications all of the facts are likely to be within the exclusive knowledge of the responding parties. Accordingly the Act provides in sections 1(5) and 69(13) as follows:
(5) Where, in an application made pursuant to subsection (4), it is alleged that more than one corporation, individual, firm, syndicate or association or any combination thereof are or were under common control or direction, the respondents to the application shall adduce at the hearing all facts within their knowledge that are material to the allegation.
(13) Where, on an application under this section, a trade union alleges that the sale of a business has occurred, the respondents to the application shall adduce at the hearing all facts within their knowledge that are material to the allegation.
There is no form of discovery under the rules governing the conduct of proceedings before the Board. In order to ensure that hearing time is not used up by parties reviewing documents for the first time, the Board often makes pre-hearing production requirements. In addition, the Act places an obligation on the responding parties to adduce certain facts within their knowledge at a hearing.
The third responding party, Spud Erectors Inc. (“Spud”) did produce some, if not all of the documents as directed. Big “B” and Sunset did not. The applicant wrote to the Board asking for a further order which was granted in part in the Board’s decision of February 8, 2000. In addition a timetable was set out for the production of documents. Again Big “B” and Sunset did not respond.
In March of 2000 the applicant sought to have the Board state a case for contempt to the Divisional Court pursuant to section 13 of the Statutory Powers Procedure Act RSO 1990 ch. S.22 as a result of this failure. The Board declined to do so stating:
[para2] Since this involves a matter of Procedural rulings regarding document production, the Board declines at this time to initiate contempt proceedings. Since there has been at least partial compliance with the order by one responding party, and all three have filed responses, the option of striking pleadings and deciding the case on the basis of the application is not available, again at this time. However, continued failure to comply with the Board's production order will, at the very least, affect the manner in which the case is presented. The Board is very unlikely to permit any responding party to file as an exhibit any document not previously produced, nor to rely on facts which are dependent on or which could be corroborated by documents not previously produced. Indeed the Board is very likely to draw adverse inferences from the absence of documents on an evidentiary issue, even where the absence of such documents is the result of a ruling of the Board refusing to admit them.
- In July of 2000 the applicant wrote to the Board renewing its request for a stated case and in the alternative requesting the Board to strike the pleadings of the three responding parties for failure to comply with the Board’s direction. The Board provided notice to all three responding parties that it would consider this request. When it received no response from any of the responding parties the applicant wrote to the Board renewing its request. The Board granted the applicant’s alternative request in a decision dated August 23, 2000. In doing so the Board said:
- Even aside from rule 45, Spud has, without adequate (or any) explanation, failed repeatedly to comply with directions of the Board. The appropriate response, to the extent possible, should be fashioned in terms of the impact that the failure to comply with the Board’s direction has on the proceedings. If the ends of justice can be served by applying an appropriate procedural response, that is preferable to contempt proceedings or invoking other processes beyond the scope of the Board’s remedial or procedural authority. In this case, Spud has raised certain issues in its response that dispute the facts asserted in the application. One way of resolving those disputes is the examination of certain relevant documents. Spud has refused to produce those documents despite repeated directions from the Board. The appropriate response is to refuse to permit Spud to rely on those facts which give rise to the dispute. In other words, the appropriate response in this case is to decide the application without considering the response or any other document filed by Spud.
The Board granted the relief as against all three responding parties as sought in the first application and set the referral of grievance down for hearing.
Shortly after, the Board received a request for reconsideration from Spud. It claimed that it did not receive the July 21 decision. A hearing was held on September 18, 2000 to deal with this request. All the parties except Spud had been served with a copy of the Board’s decision by facsimile copier. The Board has records indicating the decision was received at the fax number given by Big “B” and Sunset. Spud had not provided its fax number and so the decision was sent to Spud by courier. The courier could not produce a business record indicating the decision had been delivered to the address for Spud and therefore the decision was reconsidered and revoked in so far as it applied to Spud. This decision is dated September 21, 2000.
The applicant commenced the hearing with respect to the relief sought in respect of Spud. It became obvious that the applicant was unable to complete its cross-examination of the first witness called by Spud in the absence of the documents which Big “B” and Sunset had been ordered to produce. The hearing was adjourned at that time as the failure of Big “B” and Sunset to comply with the Board’s direction and their obligations under the Act made it impossible to determine the application filed by the applicant.
This matter has been adjourned to: October 12, 2000 commencing at 1:00 p.m., November 22, 2000 commencing at 9:30 a.m. and March 19, 20, 21, and 26, 2001 commencing at 9:30 a.m. The applicant has indicated it will serve a summons on the principals of Big “B” and Sunset to require their attendance at the Board at that time.
In addition the Board repeats its direction to the responding parties Big “B” and Sunset to produce the following documents:
Documents pertaining to the use/rental of all business premises or those from which business is or has been conducted.
Documents pertaining to the lease, rental, or ownership of (a) vehicles and (b) heavy equipment and (c) tools and equipment used in performing the work of the responding party from January 1, 1997 to December 31, 1999, including registration documents indicating the vehicle identification numbers and plate numbers where license plates are issued.
Lists of all jobs undertaken by the responding parties from January 1, 1997 to December 31, 1999 (where such lists exist), and in any event all relevant contracts, sub-contracts, bids and tenders for these jobs.
Any and all lists of employees of each of the responding parties employed as Ironworkers from January 1, 1997 to December 31, 1999, and copies of all statements of earnings and payroll records with respect to such persons.
WSIB certificates for each of the projects described in sub-paragraph three thereof.
All banking records of each of the responding parties disclosing any and all loans, lines of credit, guarantees and securities given or held by any of them.
Lists, to the extent they exist, of all suppliers used from January 1, 1997 to December 31, 1999, including copies of any contracts or other document recording the substance of the agreement with respect to such supply.
Minute books, letters , by-laws and shareholder agreements for each of the three responding parties.
The name of the bank with which each responding party deals and the name of any accountant which is or has been utilized by each of the responding parties.
Any and all welding certificates issued to and/or in the possession of Big “B” or Sunset.
All T-4 slips and T-4 summaries pertaining to employees of Big “B” or Sunset for the years 1997, 1998, and 1999.
The responding parties Big “B” and Sunset and the principals of those corporations who may be served with a summons are hereby given notice that a failure on their part to comply with the Board’s direction or to attend at the hearing as directed in the summons will lead the Board to consider seriously the request of the applicant to state a case to Divisional Court for contempt against the appropriate parties. The consequences of such a finding by the Court may well include fines and terms of incarceration for the appropriate parties.
We remain seized of these applications.
“David A. McKee”
for the Board```