2990-99-R 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; April 4, 2000
1This is an application under subsection 1(4) and section 69 of the Labour Relations Act, 1995, S.O. 1995, ch. 1 (the “Act”). The applicant, the Industrial Wood & Allied Workers of Canada, and its Local 700 (“IWA”) seeks certain relief against Wilson’s Truck Lines Limited (“Wilson’s”), Wilson Logistics Inc. (“WLI”) and Supply Chain Express Inc. (“Supply”). The application was filed originally naming only Wilson’s and WLI as responding parties. In response to a request from the applicant, the Board, on March 8, added Supply as a responding party and directed the applicant to deliver to Supply all pleadings and filings in the application. The Board further ordered “all responding parties who wish to respond to the request for an order for particulars contained in the March 6 letter shall do so on or before March 28, 2000”.
2Counsel for Supply advises the Board that all documents relating to this application were delivered to her on March 22, 2000. She states that the Board has not, in its order, fixed the time by which Supply must file a response. The Board did not do so because the time for filing a response is provided in Rule 28(c). In this case, that date would appear to be April 5, 2000.
3Counsel for Supply also expresses concern about an inability to understand the allegations being made and “request[s] that the Board advise our client what allegations it must respond to”. The Board does not advise parties who appear before it of what they should or should not do. That is the role of counsel. If counsel has difficulty understanding the nature of the application, she should seek particulars from the applicant. If none are forthcoming, Supply may make application to the Board that they be provided. If the Board agrees that the application is inadequate (bearing in mind the nature of pleadings in a section 69/1(4) application: Guaranteed Insulation ’77 Limited, [1981] OLRB Rep. Oct. 1394), it may order particulars. Alternatively, Supply may file the best response it possibly can. If the applicant fails to provide the particulars sought by the responding party, such failure would likely deprive the applicant of the right to complain of any inadequacies in the response. Further, the applicant may find that the evidence which it seeks to adduce at a hearing is circumscribed by the state of the pleadings. Counsel for Supply is an experienced and knowledgeable counsel and does not need to be told this by the Board or anyone else.
4Counsel for Wilson’s and WLI has filed a response. Those parties have raised a preliminary issue which counsel asserts must be dealt with before the matter can proceed on any other issue. This preliminary issue relates to an alleged “bifurcation of proceedings”.
5Counsel asserts that “it is the understanding of the Respondents [sic] that the preliminary issue noted above will be addressed on June 28, 2000 pursuant to the notice of hearing dated February 29, 2000. It is further the understanding of the respondents [sic] that substantive matters must be held in abeyance until a determination on the preliminary matters has been made by the Board.” The Notice of Hearing states “the Board will conduct a hearing for THE PURPOSE OF considering the evidence and representations of the parties with respect to all matters relating to the application filed under section 69/1(4) of the Act”. It is difficult to understand where counsel’s understanding came from. Reference has been made by both counsel for Wilson’s and WLI and counsel for the applicant to a meeting held with a Labour Relations Officer. Such meetings are regularly convened by Officers of the Board to discuss potential settlement and any other matters the parties wish to discuss at that time. Such Officers do not advise any of the adjudicative members of the Board of what went on during such meetings, unless such meetings result in a signed settlement of some or all of the issues in a file. It is inappropriate for any party to attempt to refer to what may or may not have been said at such a meeting in correspondence to the Board. Since the responding parties are adamant that this issue must be dealt with before any other substantive issue is contemplated by the Board, the Board will do so.
6Wilson’s and WLI assert that the applicant is forum shopping. A grievance has been filed against Wilson’s. It alleges that Wilson’s “intends to hire employees through a related entity, Wilson’s Logistics Inc. The company has stated that it will not apply the collective agreement to these new employees”. It seeks as relief “an order requiring the company to apply the collective agreement to all employees hired by the company through the related entity Wilson’s Logistics Inc.”, to post certain positions and pay compensation and interest. Wilson’s asserts that the applicant is “bifurcating its case” before the Board and the arbitrator. It asserts in Appendix “B” that “the proper forum for the hearing of this matter, which relates to the interpretation, application, administration or alleged violation of the aforementioned collective agreement, is the grievance and arbitration procedure set out under the said collective agreement between the applicant and Wilson’s Truck Lines Limited”. It further submits that the application should be held in abeyance pending the resolution of the grievance.
7The grievance itself asserts that Wilson’s has violated the collective agreement with the applicant. The agreement is between Wilson’s and the applicant. WLI is not a contractual party to it. The relief sought is against the “Company”, i.e. Wilson’s. The Board will assume that all of this relief is available under the collective agreement as against Wilson’s. That is, the grievance asserts that Wilson’s has violated the collective agreement through the use of “the related entity” WLI. Assuming an arbitrator does find that the actions complained of have occurred, and that they are a violation of the collective agreement binding on Wilson’s, and that he does have the jurisdiction to grant those remedies under the collective agreement, it is still clear that the arbitrator could grant relief against Wilson’s only. The arbitrator’s function is to interpret and apply the collective agreement. The only employer party to the collective agreement is Wilson’s. The arbitrator, absent an order from this Board, would have no jurisdiction to order any relief as against WLI. Section 48(12)(j) of the Labour Relations Act, 1995 does not empower an arbitrator to hold a hearing under section 69/1(4), nor to grant relief which the statute says only the Board can grant. On the other hand, remedies for a violation of a collective agreement (except in the context of a referral of grievance to arbitration under section 133 of the Act) may only be dealt with by an arbitrator, not by this Board.
8The relief sought in this application is said to be contained in Schedule “A” to the application. No Schedule “A” is attached to the copies of the application filed with the Board. The Board assumes that the applicant seeks a declaration that the responding parties carry on associated or related activities under common control and direction and an order that all responding parties are to be treated as one employer for the purposes of the Labour Relations Act, 1995 and for purposes of the collective agreement, or alternatively, a declaration that there has been a sale or transfer of business from Wilson’s to one or both of the other responding parties. This is not the relief sought in the grievance. No relief in respect of postings or compensation are sought in this application. Therefore, while the two proceedings arise out of the same factual situation, they seek different relief based on different kinds of rights, i.e. contractual rights arising from the collective agreement or statutory rights arising from the Act. While the potential application of a collective agreement to the combined operations of allegedly related employers may be a factor in the exercise of the Board’s discretion under subsection 1(4), it may equally be an issue the Board finds it is not necessary to deal with: Metroland Printing, Publishing and Distributing, [1991] OLRB Rep. Sept. 1069. Accordingly, the Board finds that there is no reason to hold this application in abeyance.
9The applicant has requested the Board to order Wilson’s and WLI to produce certain particulars. Wilson’s and WLI object to any such order on the grounds that the “reverse onus” applies only to the issue of common direction and control and not the issue of “associated or related activities or businesses”. (The Board notes parenthetically that subsections 1(5) and 69(13) do not provide a reverse onus. They provide an obligation to adduce evidence; the onus remains with the applicant throughout: see Arbis Construction, [1983] OLRB Rep. Dec. 1959.) Wilson’s and WLI assert that since they have pleaded that the two corporations are under common control and direction, they have satisfied their obligations under subsections 1(5) and 69(13). Subsection 1(5) provides:
- (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.
10It is not necessary to determine if the obligation to adduce can be bifurcated as the responding parties suggest. First, the subsection requires the responding party to “adduce at the hearing” certain facts. That is, the obligation is on the responding party to put certain facts in evidence. Some documents (e.g. publicly available corporate records) may be admissible without the calling of a witness to identify them. However, the adducing of facts virtually always requires calling at least one witness to give evidence which is relevant and admissible. It is not sufficient simply to produce a list of facts, a witness must be called to prove those facts: Sommerville-Belkin Industries Ltd., [1985] OLRB Rep. May 734. Once a witness is in the stand, the witness may be cross-examined about any matter relevant to the proceeding.
11Second, the responding parties must adduce facts, not conclusions of fact or law. The response of Wilson’s and WLI states: “Wilson’s Truck Lines Limited and Wilson Logistics Inc. are corporations under common control or direction”. This is not a fact. It is a conclusion. The responding parties have therefore pleaded no facts, much less adduced them. The obligation of responding parties to a section 1(4)/69 application is carefully described in Canada Cement Lafarge Ltd., [1997] OLRB Rep. Jan. 5, paras. 11-16. This process has been followed consistently by the Board since that time. The Board expects the responding parties to fulfill this obligation in this application.
12There is, of course, no discovery process under the Labour Relations Act, 1995. On the other hand, the Board does have the power to order the production of documents and particulars prior to a hearing: see section 111(2)(a) and (b), and generally Highland York Flooring Company Ltd., [1993] OLRB Rep. July 607. Clearly it is an inefficient use of the Board’s time and resources (much less those of the parties) to have a hearing process where parties repeatedly start and stop, determine that documents which are relevant exist or may exist, request adjournments in order to produce them, or in order to summons them from a witness already in the stand. The Board has an interest in conducting hearings that are efficient, orderly, and coherent. A section 1(4)/69 application is a particularly appropriate kind for the ordering of pre-hearing production.
13However, the Board is not prepared at this point to order production of documents or the provision of particulars. The interest of the Board in conducting an efficient, orderly and coherent proceeding begins with the applicant. When a party turns its mind to only one of many issues, the process serves no one. A responding party should not be asked repeatedly to search through its records to produce documents on a series of relevant issues. The Board should not have to turn its mind to repeated requests for production and/or particulars.
14Therefore, the Board directs the applicant, within five days of the receipt of the response of Supply to advise the Board of all particulars it wishes all the responding parties to provide. (The parties are reminded that day is defined in section 1(e) of the Rules.) The responding parties shall file with the Board and deliver to the applicant their response to the request for particulars or their reasons for objecting to the provision of such particulars within seven days of receiving that request. The applicant should be aware that whether particulars are reasonably required has a strong relationship to the state of the pleadings. If there are disputes, the Board will rule on them. Within ten days of the receipt of the particulars, the applicant is directed to set out the existing documents it seeks to have produced in advance of the hearing. Within five days of that date, the responding parties, if they object to the production of any such documents, shall advise the applicant and the Board, in writing, of the nature of the documents that exist and their reason for objecting to the production of them. All documents to which no objection is taken, or which the Board orders produced, shall be produced to the applicant, but not to the Board, no later than 5:00 p.m. on June 13, 2000. The Board reminds the parties that the test for the provision of particulars or production of documents is whether or not the issue or document is arguably relevant to an issue raised in the proceedings.
15I am seized of this file for the purpose of determining any issues with respect to particulars or production of documents.
“David A. McKee”
for the Board