I.W.A. Canada, Local 2693 v. North West Timber Limited and Black River Logging Inc.
1695-99-R I.W.A. Canada, Local 2693, Applicant v. North West Timber Limited and Black River Logging Inc., Responding Parties.
BEFORE: Patrick Kelly, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.
APPEARANCES: Wallace Dubinsky and Ken Paquette for the applicant; no one appeared on behalf of the responding parties.
DECISION OF THE BOARD; March 8, 2000
1The style of cause is amended to reflect the correct name of one of the responding parties: "Black River Logging Inc.".
2This is an application alleging a sale of a business under section 69 of the Labour Relations Act, 1995 ("the Act").
3Section 69(1) and (2) are the relevant provisions for the purpose of this application. They provide as follows:
- (1) In this section,
"business" includes a part or parts thereof; ("entreprise")
"sells" includes leases, transfers and any other manner of disposition, and "sold" and "sale" have corresponding meanings. ("vend", "vendu", "vente")
(2) Where an employer who is bound by or is a party to a collective agreement with a trade union or council of trade unions sells his, her or its business, the person to whom the business has been sold is, until the Board otherwise declares, bound by the collective agreement as if the person had been a party thereto and, where an employer sells his, her or its business while an application for certification or termination of bargaining rights to which the employer is a party is before the Board, the person to whom the business has been sold is, until the Board otherwise declares, the employer for the purposes of the application as if the person were named as the employer in the application.
4The hearing in this matter was scheduled for March 2, 2000, commencing at 9:30 a.m. As the applicant had, in advance, requested the Board to delay the commencement of the hearing because of the applicant's flight arrangements, the Board stood down until 10:15 a.m. At that time the applicant and its counsel were in attendance. The responding parties did not appear. The Board was satisfied that the responding parties had received notice of the hearing, and accordingly the Board commenced to deal with the matter.
5The evidence adduced solely by the applicant ("the union") disclosed that the union was, and remains a party to a collective agreement with the responding party, North West Timber Limited ("North West"). The collective agreement continues to operate. Until April 1999, North West was routinely deducting union dues from the employees covered by the collective agreement, and remitting the deductions to the union.
6After April 1999, North West was late in sending the remittances it was obliged to turn over to the union. This prompted the union's representative, Ken Paquette, to call North West's office in Manitouwadge, Ontario. Upon doing so, the receptionist answered the phone by saying: "Black River Logging". Puzzled by this introduction, Mr. Paquette asked to speak to Lauchie Meagher, North West's manager and president. The call was relayed to a person identifying himself as Mr. Meagher, who informed Mr. Paquette that North West was now called Black River Logging. He also claimed that Black River Logging was a non-union organization. Mr. Paquette replied by saying: "It doesn't work that way".
7Mr. Paquette subsequently decided to visit Manitouwadge, and observe what ostensibly was now the operation of the responding party, Black River Logging Inc. ("Black River"). He visited the site where North West had conducted its cutting operation, and discovered the employees of North West doing precisely the same work they had done previously on behalf of North West, pursuant to the same licenses previously issued.
8The evidence further disclosed that there was significant overlap in the officers of Black River Logging Inc, which was incorporated on February 8, 1999, and those of North West. Most notably, both companies share the same president, Lauchie Meagher.
Decision
9The union's evidence established a sale of a business from North West to Black River. The Board draws a negative inference with respect to the responding parties' failure to respond to the application and their failure to attend the hearing in this matter. Section 69(13) of the Act places on responding parties in a sale of a business application the burden of adducing at the hearing all facts within their knowledge that are material to the applicant's allegation. We conclude that the responding parties' silence is to be interpreted as an admission that there was a sale of the business or part of the business of North West to Black River. Accordingly, the Board finds that there was a sale of a business or part of a business from North West to Black River.
10The Board declares that Black River is the successor of North West and bound by the collective agreement between the union and North West, pursuant to section 69(2) of the Act.
11The responding parties are directed to post copies of this decision in their respective workplaces in a location where it is likely to come to the attention of the employees of each responding party. The decision is to remain posted for a period of 30 days following the date of decision.
"Patrick Kelly"
for the Board