Drywall Acoustic Lathing and Insulation Local 675, United Brotherhood of Carpenters and Joiners of America v. Lisi Brothers Construction Limited
0017-00-G Drywall Acoustic Lathing and Insulation Local 675, United Brotherhood of Carpenters and Joiners of America, Applicant v. Lisi Brothers Construction Limited, Responding Party.
0018-00-G Drywall Acoustic Lathing and Insulation Local 675, United Brotherhood of Carpenters and Joiners of America, Applicant v. 745265 Ontario Limited c.o.b. as Elite Construction, Responding Party.
0020-00-G Drywall Acoustic Lathing and Insulation Local 675, United Brotherhood of Carpenters and Joiners of America, Applicant v. Andan Drywall Ltd., Responding Party.
0021-00-R Drywall Acoustic Lathing and Insulation Local 675, United Brotherhood of Carpenters and Joiners of America, Applicant v. Lisi Brothers Construction Limited and 745265 Ontario Limited c.o.b. as Elite Construction and Andan Drywall Ltd., Responding Parties.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; May 4, 2000
Decision
1These applications are an application under section 69 and subsection 1(4) of the Labour Relations Act, 1995, S.O. 1995 ch.1, as amended (the "Act"), and three accompanying applications for the referral of grievances to arbitration pursuant to section 133 of the Act. In Board File 0021-00-R one of the responding parties, Andan Drywall Limited, has asked the Board to dismiss the application as not disclosing a prima facie case for the relief sought.
2While the Board has the authority to dismiss any application for failing to make out a prima facie case (and does do so, regularly) the standards which an application is required to meet in a section 1(4)/69 application are somewhat different than in most applications. In dealing with this type of motion, the Board in Guaranteed Insulation '77 Limited, [1981] OLRB Rep. Oct. 1394 said:
... However, as indicated above, in determining the adequacy of the particulars provided by an applicant or the specificity of statements contained in an application, the Board must have regard to all relevant circumstances, including the matters set forth in the Racine, Robert and Gauthier Reg'd case (supra). Of particular importance in cases under sections 1(4) and 63 is the limited knowledge available to unions concerning the details of a sale of a business, such as the date of a sale and the manner in which the disposition of the business was effectuated. Similarly, very limited information is generally available to unions with respect to the facts that are material to the issue of whether one or more firms are or were under common control or direction. If the firm is incorporated, a corporate search will reveal the date of corporation, the location of the head office, and the names of the directors and officers. Thus, in such circumstances, a union can reasonably be expected to set forth in its application information such as that specified in paragraph 12(a), (b), (c) and (d) of this application. (As noted by counsel for the applicant, the inclusion of the alleged date of incorporation of Expert (June 20, 1979) serves to indicate to the respondents that the maximum time frame covered by this application is approximately 27 months.)
By enacting sections 1(5) and 63(13) of the Act, the Legislature has recognized that most, if not all, of such facts lie within the exclusive knowledge of the respondents in proceedings under sections 1(4) and 63. As noted in Woodway Structural Components, [1971] OLRB Rep. Aug. 545, "in general, the effect of 'peculiar knowledge' is that it may mean that very little evidence is required to satisfy the evidentiary burden when it rests upon the party lacking such knowledge." Similarly, the Board is of the view that as regards particularity and specificity, the effect of "peculiar knowledge" is that very little is required to satisfy the requirement of providing particulars or specifics, when such requirement rests upon the party lacking such knowledge.
For the foregoing reasons, the Board is of the view that an applicant under section 1(4) or 63 generally satisfies the requirements of fairness and natural justice implicit in Rule 47 by providing the information required by Form 21a (in the case of an application under section 63) or Form 21f (in the case of an application under section 1(4)). Moreover, even some of that information may not be required in the circumstances of a particular case; for example, as indicated above, the precise date of the alleged sale may well be unknown to, and unascertainable by an applicant. Thus, an indication of the time frame to which the section 63 application pertains (such as the 27 month time frame implicit in the allegations in the present case) may suffice.
3In this case the applicant has gone well beyond the minimum required in providing the information required in the Form A-24 application. Whether the applicant's assertions of fact are borne out by the evidence remains to be seen. At this point, we can only look at the application. It does provide a statement of facts which, if true, would constitute sufficient facts to enable the Board to grant relief under both sections and would probably persuade the Board to exercise its discretion under subsection 1(4) to grant the relief sought. Accordingly, the application to dismiss the application as failing to disclose a prima facie case is dismissed.
4Board Files 0017-00-G, 0018-00-G and 0020-20-G are all referrals under section 133. As such, each of them requires the responding party to file a Notice of Intent to Defend (Form A-87) within five days after being advised by the Board that it has confirmed the filing of the application. The parties have requested that the Board hold these referrals "in abeyance" pending the outcome of the application in Board File 0021-00-G. A Labour Relations Officer has called a settlement meeting for May 19, 2000 and the parties are encouraged to attend that meeting to determine if settlement discussions can be fruitful. For all other purposes, the Board adjourns these applications sine die. If at any time the applicant seeks to bring these matters back on for hearing, the time for calculating the obligation to file the Form A-87 will commence on the day after the date of the letter from the applicant so advising the Board. The Board directs the applicant, if it does request the matters to be relisted, to deliver a copy to all responding parties and to any counsel known to the applicants to be acting for any of them.
"David A. McKee"
for the Board