3684-99-G Brick and Allied Craft Union of Canada, Local 10 (formerly known as the International Union of Bricklayers and Allied Craftworkers Local 10), Applicant v. 620230 Ontario Inc. o/a TS Masonry, Tony Sica Masonry Inc. and VMS Masonry (1996) Ltd., Responding Parties.
BEFORE: David A. McKee, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; April 6, 2000
This is a request for reconsideration of a decision of the Board dated March 23, 2000, made pursuant to section 114 of the Labour Relations Act, 1995, S.O.1995 ch.1 (the “Act”). In that decision, the Board found that the applicant had failed to plead sufficient facts to establish the quantum of damages, and so left the matter scheduled for hearing for the purpose of assessing such damages. The applicant now asks the Board to reconsider that decision in the light of further material filed in support of its claim for damages.
The Board was initially attracted to the applicant’s request. The material filed, which consists of a large number of statements of earning which were attached to employee pay cheques and detailed calculations of the amounts owing to the union and to employee benefit trust funds, is more than sufficient to demonstrate the exact quantum of damages owing. Had this material been attached to the original application, there is little doubt that the Board would in its original decision have simply awarded the applicant the sum sought. These responding parties have not filed a response, or shown any interest in the application. They were similarly inactive in the application under section 1(4) which led to the Board decision under that section, a copy of which was attached to the application as proof of bargaining rights. However, the Board is not prepared to grant the applicant’s request for the reasons set out below.
First, the application has not been properly made. A Request for Reconsideration must be filed in the manner prescribed by the rules. The application must be made on Form A-49. More importantly, both the Form A-49 application and a blank copy of the Notice of Request for Reconsideration (Form C-24) with the style of cause and other information typed on to the Form must be delivered to the Responding Party before the application is filed with the Board. This is set out clearly in Information Bulletin 19. In this case the applicant has simply sent a letter to the Board with the material attached, and has provided a copy to the responding parties. The fact that the responding parties were provided with the material at the same time as the Board is not a matter of great concern. However, the reason the Board designed the forms and the process by which they are to be served is not merely technical. In doing so the Board attempts to ensure that all parties are given adequate notice of the issues raised in an application and adequate time to respond in a meaningful manner. The Board has an obligation to conduct itself in a manner which is consistent with the rules of natural justice, regardless of the apparent lack of interest of one party. It would be inappropriate to waive requirements which are designed to provide the opposing parties to the litigation with reasonable notice and an opportunity to respond, simply because the material is adequate to enable the Board to understand the issues.
On a practical level, the time frame is too short to enable the Board to respond to the application. It was received on March 31, 2000 at 1:41 p.m. The Board’s normal process, when served with a proper application, is to fax or deliver to the responding parties a notice that the application has been received and that the Board will advise whether the responding parties are required to respond. The file is then placed before the panel which originally decided the matter. If they decide that submissions from the responding parties are required, another notice will be sent to the responding parties asking for their submissions within a relatively short period of time, but never less than five working days. In this case it would be necessary to give the responding party the opportunity to respond to the applicant’s new information. In this case there were only six full working days between receipt of the applicant’s letter and the hearing date. There was insufficient time to follow a process consistent with the rules of natural justice.
Second, this application does not meet the general guidelines set out by the Board for applications for reconsideration. It is clearly information that the applicant could have provided to the Board in the original application. The applicant does not allege that it did not have the information or the opportunity to raise the issue earlier. This is only a guideline, however, and an applicant may persuade the Board that different considerations ought to be applied in any individual case. It has not done so here, nor has it even addressed this issue.
Third, and perhaps most importantly, the Board must have some concern about the process of granting what is essentially a “default judgement”. Section 133 applications are set for hearing fourteen calendar days after they are filed with the Board. If the Notice of Intent to Defend is not filed within five days of the receipt of the Confirmation of Filing provided by the Board, the Board will automatically review all files to determine if a “default” decision has been sought and if one is appropriate. These short time frames are both appropriate and necessary in the administration of collective agreements in the construction industry. Genuine disputes will be litigated. Those applications which are simply the collection of wages and fringe benefits owing to employees as a result of work performed, ought to be processed efficiently and expeditiously so that the Board’s decision has a practical value in the context of an employer with no fixed work location or readily identifiable assets. This policy is not served by permitting applicants to file their applications piecemeal. The Board expects that the applicants themselves will demonstrate the same concern for efficiency and expedition that the Board has.
For all of these reasons, the Board declines to reconsider its decision of March 23, 2000. The matter remains set for hearing on April 11, 2000.
“David A. McKee”
for the Board