3717-97-U Lake Ontario Carpenters’ District Council for the United Brotherhood of Carpenters and Joiners of America and Local Unions 397, 1071, 572 and 1450 of the United Brotherhood of Carpenters and Joiners of America, Applicant v. United Brotherhood of Carpenters and Joiners of America, James E. Smith, Douglas J. McCarron and Ucal Powell, Responding Parties.

BEFORE: D. L. Gee, Vice-Chair.

APPEARANCES: L. A. Richmond and J. Neville on behalf of the applicants; Harold

F. Caley and Dan McCarthy for the responding parties; Andrea Bowker appearing on behalf of “Black et al” on April 27, 2000 only.

DECISION OF THE BOARD; May 18, 2000

1. On April 26, 2000, the Board ruled orally that it would not adjourn the hearing of this matter in order to entertain a request for reconsideration on behalf of the United Brotherhood of Carpenters and Joiners of America, Locals 18, 446, 494, 2041, 2222 and 2486 (referred to herein collectively as the “Locals”) of the Board’s determination of January 26, 1999 that they did not have standing to intervene in the instant matter. As the Board indicated at the time of its oral ruling, the Board is not satisfied that a request for reconsideration has been made. Furthermore, the Board is not persuaded that the Locals were granted an extension of time for the filing of such a request. Finally, if a request for reconsideration was made at this stage of the proceedings, it would not be timely. Set out herein are the Board’s reasons for its oral ruling.

2. It should be pointed out that while I have referred in the foregoing paragraph, and will do so throughout this decision, to the request for an adjournment being made on behalf of the Locals, such is an assumption on my part. There is nothing anywhere in this file which indicates that it is all of the Locals who were seeking an adjournment of these proceedings in order to have the Board entertain a request for reconsideration. As is mentioned below, to date no such request has been made either in letter form or on the Board’s forms as required by the Board’s Rules of Procedure. The appearance sheet completed by counsel who attended at the hearing on the morning of April 27, 2000 indicates that she was appearing on behalf of “Black et al.”. Black was never a party in Board File No. 3717-97-U and accordingly such must be an error.

3. On January 26, 1999, Vice-Chair Shouldice issued a decision in Board File Nos. 3717-97-U, 4510-97-U, 1457-98-U and 1538-98-U. For the purposes of the instant decision, it is relevant that the Locals (i.e. the entities denied standing in Board File No. 3717-97-U) are, in combination with Bryron Black and Don Guilbeault, the applicants in Board File No. 1457-98-U and represented by the same counsel in both matters.

4. Vice-Chair Shouldice’s decision of January 26, 1999, makes determinations with respect to a number of procedural and preliminary matters at issue in Board File Nos. 3717-97-U, 4510-97-U, 1457-98-U and 1538-98-U. Amongst the numerous rulings made therein, Vice-Chair Shouldice struck various paragraphs from the application in Board File No. 1457-98-U for irrelevance and delay and directed that other paragraphs be particularized as specified therein. Vice-Chair Shouldice further directed that, following receipt of such further particulars, the responding parties in Board File 1457-98-U would have 10 days within which to request that the Board dismiss the allegations. In addition, and at the centre of the issue herein, Vice-Chair Shouldice ruled that a number of entities, including the Locals, that had sought intervenor status in Board File No. 3717-97-U, and a number of other entities that had sought intervenor status in Board File Nos.1457-98-U, would not be granted standing to intervene. Board File No. 1538-98-U was dismissed and Board File No. 4510-97-U was withdrawn. Further, Vice-Chair Shouldice ruled that Board File Nos. 3717-97-U and 1457-98-U would be heard separately.

5. Subsequently, after the issuance of the January 26, 1999 decision, Vice-Chair Shouldice resigned from the Board.

6. On May 14, 1999, the Board sent a notice of hearing with respect to the instant matter, i.e., Board File No. 3717-97-U, advising that the hearing would take place on September 15 and 16 and October 26 and 27, 1999. A copy of the Board’s notice was sent to counsel for the Locals.

7. On May 20, 1999, counsel for the Locals wrote to the Board referencing the Board’s May 14, 1999 notice of hearing. The letter expresses concern about the Board’s scheduling of Board File No. 3717-97-U in advance of Board File No.

1457-98-U in which the Locals are amongst the applicants. Counsel expresses the view that the hearing of Board File No. 1457-98-U ought to precede the hearing of Board File No. 3717-97-U and asks the Registrar of the Board to look into the scheduling issue forthwith. No alterations were made to the scheduling of Board File No. 3717-97-U by the Board as a result of counsel’s request, however, as a result of scheduling issues, the Board advised the parties on September 9, 1999, that the October 27, 1999 hearing date was adjourned.

8. The parties attended at the Board on September 15, 1999. I was the Vice-Chair assigned to sit on this matter and accordingly met with the parties on that date. Discussions took place and the parties felt that further settlement efforts should be made. As a result, the parties agreed to adjourn the remaining scheduled hearing dates to dates in March 2000. In addition, the parties agreed to attend a case management meeting with myself on October 7, 2000.

9. The case management meeting was held on October 7, 1999 as scheduled. Following such meeting, a written decision dated October 12, 1999 was issued. The October 12, 1999 decision sets out the March dates on which the parties had agreed the hearing of the matter on the merits was to commence and concludes with the sentence “I am seized.”

10. Unfortunately, the Board was unable to accommodate the dates agreed to by the parties. On December 3, 1999 the Board sent out a notice of hearing indicating that Board File No. 3717-97-U had been rescheduled to be heard commencing April 26, 2000 and continuing on April 27 and 28 and May 10, 11, 25 and 26, 2000. Such notice of hearing was sent to counsel for the Locals.

11. Pursuant to the January 26, 1999 direction of Vice-Chair Shouldice, the applicants in Board File No. 1457-98-U (referred to herein as “Black et al.”) delivered to the responding parties therein and filed with the Board further particulars. As stipulated in the January 26, 1999 decision, the responding parties filed written submissions with the Board in which they requested that the paragraphs in question be struck.

12. As a result of Vice-Chair Shouldice’s resignation from the Board, the responding parties’ request was forwarded to Vice-Chair Freedman to determine. On October 22, 1999, Vice-Chair Freedman issued a decision. There can be no doubt that the decision issued by Vice-Chair Freedman relates solely to Board File 1457-98-U. It is the sole file number that appears on the decision. Vice-Chair Freedman’s decision identifies the issue being dealt with therein as follows:

Counsel for the International and the individual responding parties seeks a ruling from the Board arising from the Board’s direction to the applicants to file additional particulars. Counsel submits that those three paragraphs in the application be struck on the grounds that they do not disclose a violation of the Act even with the additional particulars filed and in respect of paragraph 35, on the additional ground that it is irrelevant.

Vice-Chair Freedman allowed the motion to strike paragraph 35 and dismissed the motion to strike paragraphs 36 and 40. The last sentence of the decision states “[T]his panel of the Board is seized with this matter.”

13. On November 18, 1999, counsel who represented the Locals in Board File No. 3717-97-U and the applicants in Board File No. 1457-98-U wrote to the Board. The reference line on the letter is the style of cause from Board File No. 1457-98-U and cites “Board File No. 1457-98-U”. Nowhere in the reference line does Board File No.

3717-97-U appear. In fact, nowhere in the entire letter does a reference to Board File No. 3717-97-U appear. The absence of a reference to Board File No. 3717-97-U is not surprising given the subject matter of the letter. The letter opens as follows:

Further to the decision of the Board dated October 22, 1999 with respect to this matter (specifically the decision of Vice-Chair Harry Freedman) this serves as our request for reconsideration of such decision.

Vice-Chair Freedman’s decision, it will be recalled, dealt solely with Board File No. 1457-98-U.

14. The letter then explains that, having regard to ongoing settlement discussions, the applicants had not responded to objections raised by the responding parties in Board File No. 1457-98-U concerning the applicants’ “additional particulars”. The applicants indicate that they had not anticipated that a Board decision would issue prior to their being provided with an opportunity to reply. The letter then states as follows:

In fact, we were awaiting the appointment of a new Vice-Chair to deal with this matter insofar as it was and remains our intention to seek reconsideration of the January 26, 1999 decision of then Vice-Chair Lee Shouldice dealing with various preliminary and procedural rulings. Having been advised that former Vice-Chair Shouldice was leaving the Board prior to the preliminary ruling actually issuing, it made little sense to apply for reconsideration at that time. In a case of this complexity is was important that the Vice-Chair seized to deal with the matter have the opportunity to decide the reconsideration request as “master of the proceeding”.

In hindsight, I should at a minimum have advised the Board and the Respondent of that intention to avoid any confusion about our position. While the mediation effort is continuing, it was certainly not our intention to forego our rights under the Act in the interim and in the event that the mediation proves unsuccessful.

For the record it is our position that Vice-Chair Shouldice erred in law with respect to certain aspects of his preliminary ruling and that we will be precluded from having a full and fair hearing by the improper striking of a number of pleadings central to our case. While we are not seeking a remedy with respect to many of the facts declared “staledated” by Vice-Chair Shouldice, such facts certainly are relevant and necessary to our case with respect to establishing critical background. Similarly, while we are not seeking a remedy as against individuals who are not named Respondents, facts as pleaded with respect to such individuals are critical relevant facts necessary to our case. Frankly we would have expected that that information would come out in evidence rather than being treated as a “material fact” required to be pleaded. At a minimum, we would have expected the opportunity to provide information establishing the relationship and resulting relevance prior to the pleadings being struck outright. In the normal course, a party is not required to outline the evidence it intends to rely upon nor its argument. Accordingly, it is unduly prejudicial to have significant pleadings struck without full opportunity to establish the relevance thereof.

I would suggest that the reconsideration issue be dealt with at the next scheduled hearing date insofar as oral argument would likely be the most expeditious manner of dealing with the issue and additionally to allow Vice-Chair Freedman (who is now seized with this matter) the opportunity to raise any questions or concerns insofar as he did not have the benefit of hearing the original positions of the parties in this matter. Please advise if the Board requires any written submissions on this issue in advance of the next hearing date.

As always, if you have any questions or concerns with respect to this matter, please do not hesitate to contact me at your convenience.

15. On November 23, 1999, Vice-Chair Freedman issued a further decision in Board File No. 1457-98-U. Such decision sets out the style of cause for Board File No. 1457-98-U alone and refers solely to Board File No. 1457-98-U. It will be recalled that, at the time of Vice-Chair Freedman’s November 23, 1999 decision, I, as confirmed in my decision of October 12, 1999, was seized with Board File No. 3717-97-U. Vice-Chair Freedman’s decision of November 23, 1999 is as follows:

16. Counsel for the applicants, by letter dated November 18, 1999, seeks reconsideration of the Board’s decision in this matter dated October 22, 1999. In that letter counsel made submissions in support of her request and also suggests that the reconsideration issue be dealt with at the next scheduled hearing as oral argument would be the most expeditious way of dealing with the issues raised by her request.

17. Before the Board began consideration of the applicant’s request, a letter from counsel for the applicants dated November 19, 1999 advised the Board that the parties had agreed to adjourn the hearing in this matter scheduled for December 13, 1999 because the parties continue to engage in serious mediation efforts in an attempt to resolve this matter. No hearing dates after December 13, 1999 have been fixed as yet.

18. In my view, given that the parties are engaged in mediation efforts, a decision arising from the request for reconsideration at this time might well affect the dynamics of the mediation efforts. Furthermore, as the parties continue to engage in those mediation efforts and have agreed to adjourn the scheduled hearing, the Board will adjourn this matter sine die. Therefore, unless a party advises the Board that the reconsideration request should be considered and processed further, nothing more will be done in relation to it unless there is a request that this matter be listed for hearing.

19. Therefore, having regard to the agreement of the parties that this matter be adjourned to permit their serious mediation efforts to continue, the Board hereby adjourns this matter sine die. Unless a party requests that the Board proceed with this matter within one year from the date of this decision, it will be deemed terminated.

20. On April 25, 2000, counsel for the applicants in Board File No. 1457-98-U wrote to the Board. The reference line on the April 25, 2000 letter sets out the style of cause for Board File No. 1457-98-U and cites Board File No. 1457-98-U. No mention is made of Board File No. 3717-97-U. The letter in its entirety states as follows:

Further to our letter of November 18, 1999 indicating that we will be seeking reconsideration of former Vice Chair Shouldice’s January 26, 1999 Decision and further to the Board’s Decision of November 23, 1999 acknowledging adjournment of the scheduled hearing dates in this matter, this serves as our streneous request that the hearing dates scheduled this week commencing tomorrow be adjourned.

As you are aware, the parties have been engaged in mediation efforts with respect to all outstanding matters at the Board. In fact, the mediation efforts have been geared to the outstanding LODC Complaint and not to the herein Complaint. We have today received a response from the Respondent to our last position in that regard. We have just been advised, however, that the Respondent intends to proceed with the hearing dates scheduled this week in the LODC Complaint notwithstanding that a settlement of that matter is likely imminent.

Accordingly, we apologize for the late notice, but certainly did not expect that the hearing would be proceeding in this matter absent the derailing of the settlement discussions. Aside from the fact that it makes no labour relations sense to proceed in all the circumstances, it is our position that the Board cannot proceed with this matter until our standing reconsideration request is dealt with. While it not clear on the face of our November 18, 1999 letter to the Board we will be seeking reconsideration of Vice Chair Shouldice’s Decision on the status issue as well as the particulars specifically referred to in our letter.

We were not copied as a party when the continuation hearing dates were set down in the LODC matter scheduled to commence tomorrow, and unfortunately I am unavailable. We expect, however, that we will be given the opportunity to make our full reconsideration request before the Board prior to the commencement of the hearing. Obviously, the question of status must be resolved prior to the hearing commencing on its merits.

For these reasons, we would ask that the hearing be cancelled to allow either (1) the parties to conclude a settlement in this matter, or alternatively (2) that the reconsideration matter be set down for the earliest possible hearing date prior to the commencement of the hearing on the merits.

As always, if you have any questions or concerns with respect to this matter, please do not hesitate to contact me at your convenience.

Given that the April 25, 2000 letter made no mention of Board File No. 3717-97-U, it was not placed in Board File No. 3717-97-U nor was a copy directed to my attention by the clerks of the Board.

17. As indicated above, the instant matter was, as of December 3, 1999, scheduled for hearing commencing on April 26, 2000. At the commencement of the hearing on April 26, 2000, counsel for the applicants in Board File No. 3717-97-U (referred to herein as “LODC”) requested an adjournment in order that further settlement discussions could be held. The responding party did not agree with the request and argued that it would be prejudiced by a delay in concluding this matter as, pursuant to section 147(5) of the Labour Relations Act, 1995, the alteration the responding party seeks to make cannot be implemented until the Board disposes of the matter. Counsel for the applicants further indicated that the hearing ought not to proceed until the Board had dealt with the “request for reconsideration of the status of the intervenors” and accordingly the Board should adjourn the hearing to deal with such request. In response to a question from myself, counsel for the applicants indicated that he was not representing the Locals that morning before the Board, he was simply aware that a request was outstanding and was bringing such to the Board’s attention. Accordingly, notwithstanding that counsel for the Locals had notice of the hearing, no one was present on behalf of the Locals who was suggesting to the Board that there was an outstanding request for reconsideration in Board File No. 3717-97-U.

18. I advised the parties that it was my determination that the matter would not be adjourned in order for further settlement discussions to be held. This matter has been outstanding for a number of years and considerable efforts have been made by the parties, with and without the assistance of the Board, towards a settlement. As some stage, the litigation process must begin. Further, I see no benefit to adjourning a hearing in order for settlement discussions to be held when one of the parties does not agree. To the contrary, adjourning where only the party who stands to benefit from delay asserts that there is a continuing benefit to settlement discussions, is simply a recipe for litigation without conclusion.

19. I further advised the parties that, based on the materials before me, I saw no evidence of a request for reconsideration having been filed in the instant matter or the Board having given an extension of time for the filing of such a request and that the filing of such a request at this stage of the proceedings would be untimely and would not be permitted. Due to the fact that the letter which counsel for the LODC had directed my attention referred to Board File No. 4157-98-U and not 3717-97-U, I indicated that I would review the contents of Board File No. 4157-97-U to determine if in fact a request for reconsideration relating to Board File No. 3717-97-U had been made but placed in the wrong file. I advised the parties that I would conduct such a review, however, barring my finding a request for reconsideration, my determination that no such request had been made would stand and the adjournment request to deal with such a request would be denied.

20. Counsel for the responding party was concerned that, notwithstanding that I had effectively ruled on the issue of whether a reconsideration request had been filed and whether I would allow one to be filed at this late date, someone would appear on behalf of the Locals the next morning and attempt to reargue the entire issue. Counsel requested that, if it was the intention of counsel for the Locals to appear the next morning and attempt to reargue the issue, he be advised in advance. In an effort to minimize delays that could potentially arise the next morning, I asked counsel for the LODC, who is with the same law firm as counsel for the Locals, to inform counsel for the Locals that, if it was her intention to attend the next morning and make an attempt to reargue the issue, she was to inform counsel for the responding party no later than 5:00 p.m.

21. Notwithstanding their lack of attendance on the morning of April 26, 2000 and the continuing lack of any request for reconsideration having been filed, counsel was in attendance on behalf of the Locals on the morning of April 27, 2000. Due to her unavailability counsel who appeared on behalf of the Locals was not the same individual who had previously represented the Locals. Counsel for the Locals advised the Board that counsel for the responding party had not been advised at all of the fact that someone would be appearing that morning due to the lateness of their having been notified of the Board’s instruction. Notwithstanding the fact that no one had appeared on behalf of the Locals the previous day, there was still no request for reconsideration filed with the Board and the fact that I had effectively, barring the discovery of a request for reconsideration that had been misfiled, ruled on the issue the previous day, I allowed counsel who appeared on behalf of the Locals to make full submissions.

22. Counsel for the Locals advised the Board that the Locals had indicated, by way of the November 18, 1999 letter (reproduced in large part above), that they would be seeking reconsideration of the “status ruling”. Counsel indicated that settlement discussions have been ongoing ever since and had continued right up until the previous day. Counsel stated that, in light of Vice-Chair Freedman’s ruling of November 23, 1999 (reproduced above) in Board File No. 1457-98-U, in which everything was put on hold, the Locals were pursuing the same principle in connection with Board File No.

3717-97-U. Given that settlement discussions had only concluded the previous day, they were only now seeking the opportunity to make submissions with respect to their request for reconsideration.

23. I further heard full submissions from counsel for the LODC who supported the position taken by counsel for the Locals.

24. At the conclusion of such submissions I advised the parties that my review of Board File No. 4157-98-U did not reveal a request for reconsideration relating to Vice-Chair Shouldice’s ruling pertaining to the Local’s standing to intervene in Board File No. 3717-97-U. I did not accept that Vice-Chair Freedman’s ruling of November 23, 1999 had any effect whatsoever on Board File No. 3717-97-U and did not grant the Local’s an extension of time for the filing of a request for reconsideration in Board File No.

3717-97-U. Further, as I had ruled the previous day, the filing of such a request at this stage would be untimely. Accordingly, I indicated that the hearing on the merits would proceed.

25. The correspondence and Board rulings relied upon by the Locals in support of the position that they had articulated an intent to file a request for reconsideration of Vice-Chair Shouldice’s ruling with respect to their status to intervene in Board File No. 3717-97-U, and that Vice-Chair Freedman had ruled that any such requests could be withheld until settlement discussions failed, is reproduced above and speaks for itself. For the reasons that follow, I do not accept that the Locals ever expressed an intention to seek reconsideration of Vice-Chair Shouldice’s determination with respect to their status to intervene or that Vice-Chair Freedman ever addressed the question of whether such a request should be withheld pending the outcome of settlement discussions.

26. Turning first to counsel’s letter of November 18, 1999 (which the Locals rely upon as setting out their intention to seek reconsideration of Vice-Chair Shouldice’s determination that they lacked standing to intervene in Board File No. 3717-97-U) such letter clearly states that it is intended to serve as a request for reconsideration of

Vice-Chair Freedman’s decision of October 22, 1999. It expresses an intention to seek reconsideration of Vice-Chair Shouldice’s decision as it relates to his decision to strike a number of paragraphs from the application filed in connection with Board File No.

1457-98-U. After acknowledging that the Locals’ intention to seek such reconsideration should have been conveyed earlier, counsel set out “for the record” the Locals’ position with respect to the errors made by Vice-Chair Shouldice. No mention whatsoever is made of Vice-Chair Shouldice’s determination that the Locals did not have standing to intervene in Board File No. 3717-97-U. Thus, in a letter acknowledging that better efforts should have been made to apprise the Board and the other parties of the Locals’ position vis a vis the decision of Vice-Chair Shouldice, no mention whatsoever is made of Board File No. 3717-97-U. Further, in the section of the letter designed to clearly put the Locals’ position on the “record”, no mention is made of Vice-Chair Shouldice having erred by ruling that the Locals lacked standing to intervene in Board File No. 3717-97-U. The suggestion that the letter deals with Board File No. 3717-97-U in any way is simply not correct.

27. Vice-Chair Freedman’s decision of November 23, 1999 deals only with Board File No. 1457-98-U. Not only does it only deal with Board File No. 1457-98-U, it only deals with the Locals’ request that he reconsider his decision of October 22, 1999. To the extent then that Vice-Chair Freedman ruled that “unless a party advises the Board that the reconsideration request should be considered and processed further, nothing more will be done in relation to it unless there is a request that this matter be listed for hearing”, he appears to have been adjourning the request for reconsideration of his decision, not an as of yet unfiled request for reconsideration of Vice-Chair Shouldice’s decision. Whether Vice-Chair Freedman’s November 23, 1999 decision grants the Locals an extension in perpetuity for the filing of a request for reconsideration of

Vice-Chair Shouldice’s decision that had not yet been filed in connection with 1457-97-U is for Vice-Chair Freedman to decide. However, to rely on the decision as granting such an extension of a request for reconsideration, that has never even been articulated by the Locals in a completely different file not even referenced in the decision, is in my view incomprehensible.

28. In the April 25, 2000 letter set out above, counsel for the Locals indicates “[W]hile it is not clear on the face of our November 18, 1999 letter to the Board we will be seeking reconsideration of Vice-Chair Shouldice’s decision on the status issue as well as the particulars specifically referred to in our letter.” This is an accurate statement of the state of affairs. As of April 25, 2000, the day before this matter was scheduled to be heard, there was no indication from the Locals that they intended to seek reconsideration of Vice-Chair Shouldice’s decision with respect to their status in Board File No. 3717-97-U. The April 25, 2000 letter is the very first time that such issue is raised. Due to the fact that the letter makes no reference to Board File No. 3717-97-U anywhere on or in it, such letter was not brought to my attention in advance of the commencement of the hearing. Counsel indicates that the Locals were not copied on the Board’s notice of hearing and thus was unable to alert the parties and the Board to the outstanding issue in a more timely manner. The Board’s file indicates that counsel for the Locals was in fact provided with notice of the fact that Board File 3717-97-U would be heard commencing on April 26, 2000 under cover of letter dated December 3, 1999. Counsel thus knew for in excess of four months that Board File No. 3717-97-U was scheduled for hearing. Notwithstanding such knowledge, counsel did not make a request for reconsideration in a manner that would have permitted the Board to deal with the request in advance of the set hearing dates nor did she attend at the first day of hearing in order to make submissions to the Board. Rather, when the hearing commenced on April 26, 2000, no request for reconsideration had been filed and no one was in attendance on behalf of the Locals to speak to any such request.

29. Thus, as of the morning of April 26, 2000 (and continuing to date), there was no request for reconsideration filed in connection with Board File No. 3717-97-U. Further, it cannot be said that the decision of Vice-Chair Freedman of November 23, 1999 grants the Locals an extension of time for the filing of such a request. Finally, the filing of a request for reconsideration at this stage of the proceedings, would be untimely and would not be entertained by the Board.

“D. L. Gee”

for the Board