Ontario Labour Relations Board
2303-00-G International Union of Bricklayers and Allied Craftworkers, Local 7, Applicant v. Bells Corners Flooring Ltd., Responding Party v. Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers; Brick and Allied Craft Union of Canada, Intervenors.
BEFORE: David A. McKee, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; November 16, 2000
1This is a referral of a grievance to the Board for determination under section 133 of the Labour Relations Act, 1995, S.O. 1995, c. 1, (the “Act”). The referral was made on November 6, 2000. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on November 6, 2000 by the applicant having delivered a copy of the necessary documents required by Rule 155 of the Board’s Rules of Procedure to the responding party by giving them to Purolator Courier on November 3, 2000 who assured the applicant that they would be delivered on Monday, November 6, 2000 by no later than 5:00 p.m.. The Registrar delivered a Confirmation of Filing of a Referral of Grievance to Arbitration to the responding party by courier, to be delivered on November 8, 2000.
2As of the date of this decision, the responding party has not filed a Request for Hearing and Notice of Intent to Defend/Participate (Form A-87). The Board’s Rules of Procedure explicitly stipulate the consequences of failing to comply with the filing requirements contained in the Rules.
3Section 133 of the Act provides, in part:
“(7) The Board is not required to hold a hearing if the responding party does not file any material.
(8) If the Board does not hold a hearing in the circumstances described in subsection (7), the Board may determine the matter with reference only to the material filed by the party referring the grievance.
(9) If the Board accepts the referral, the Board has exclusive jurisdiction to hear and determine the difference or allegation raised in the grievance referred to it, including any question as to whether the matter is arbitrable, and subsections 48(10) and (12) to (20) apply with necessary modifications to the Board and to the enforcement of the decision of the Board.”
4In addition, the Chair of the Board has the authority to make rules to give effect to the various statutory powers conferred upon the Board. Section 110(17) of the Act provides:
“The chair may make rules governing the Board’s practice and procedure and the exercise of its powers and prescribing such forms as the chair considers advisable.”
5Furthermore, the Board has very wide powers to require a party to provide particulars, documents, and any other information the Board deems necessary. (See sections 111(2)(a) and (b) of the Act.)
6The Board’s Rules in respect of section 133 proceedings place a substantial burden on the applicant. As well as filing certain material with the Board, the applicant must provide to the responding party:
A copy of the application.
A copy of the Notice of grievance referral.
A blank copy of the Request for Hearing and Notice of Intent to Defend (Form A-87, i.e. the form the responding party requires to file its response.
A blank response form for the responding party’s use.
A copy of the Board’s Rules with respect to section 133 referrals (i.e. Part VIII of the Rules, being Rules 143-163) and Information Bulletin No. 20 which provides the responding party with further information about the process involved in a section 133 application (including the consequences of default).
7The only thing a responding party must do to avoid default proceedings is to complete the Form A-87 supplied by the applicant and deliver it to the Board and the applicant within five days of the date of the Board’s Confirmation of Filing (Form B-67). Form A-87 requires little more than the responding party’s name and address and an assertion that the responding party wishes to defend against the grievance referral. The substance of that defence is contained in the response which is not due until 9:30 a.m. on the day set for hearing.
8The Board’s Rules require quick responses from responding parties in many sorts of applications. In an application for certification, for example, a responding employer (who is often unfamiliar with proceedings under the Act) must respond within two days after the application was served on it. In a section 133 proceeding, the responding party has some relationship with the applicant and therefore should have some understanding of the contractual and statutory context in which a grievance referral arises. In any event, the Form B-67 faxed to the responding party contains the following warning in bold print:
“The failure to file a timely Request in the way required by the Board’s Rules of Procedure may result in the referral being decided without a hearing and without further notice to the defaulting party.”
9The Board’s Rules deal specifically with the consequences of failing to file the Form A-87. Rules 160 to 162, which are part of the Rules package delivered to the responding party by the applicant, provide as follows:
“160. If a responding party does not deliver and file a “Request for Hearing and Notice of Intent to Defend” (Form A-87) in the way required by these rules, he or she may automatically be deemed to have accepted all of the facts stated in the application, and the Board may cancel a hearing (if one is scheduled), and decide the case (or part of the case) upon the material before it without further notice.
Where the facts stated in the application are deemed to be true and the Board considers that it can make a finding of liability, but cannot determine the question of damages, the Board may decide the liability issue under Rule 160 and leave the damages issue to be determined at an oral hearing.
Where the Board decides or has decided a case (or part of a case) under Rule 160, the responding party may not file a Request or a response, or take any other step in connection with the application, other than a reconsideration application, except with the permission of the Board.”
10Were it not for an intervention filed, the Board would be able to proceed on the basis that all of the allegations of fact set out in the referral to the Board and in the grievance material have been accepted by the responding party and therefore could be relied on by the Board in making a determination of this matter. However, this is not to be.
11The Board will treat the intervention as having been filed by the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers. It appears from the text of the intervention that this is the party that intended to intervene. The Brick and Allied Craft Union of Canada (“BACU”) also purported to file an intervention. Since only one filing fee was paid, only one intervenor can appear as a party (see section 133(12)). The BACU or the intervenor are welcome to change the Board’s choice if they so desire. Alternatively the BACU can pay the filing fee to participate.
12The intervention raises serious issues which may require litigating. However, the parties ought not to lose sight of the fact that this process is designed to protect the rights of the members they both seek to represent in some fashion or another. Certain things are clear, on the basis of the application and a failure to respond by the responding party and a refusal to contradict by the intervenor. These are:
- the responding party is bound to a collective agreement;
-Local 7, the applicant, is a party to that agreement and is entitled to enforce the rights of its members;
Shawn Murchison is a member of the applicant and was an employee of the responding party and was covered by the collective agreement;
Shawn Murchison has not been paid some of the wages owed to him. The amount of those wages is $1,840.00;
the employee benefit fund contributions required by the collective agreement have not been paid for a number of employees to any party;
which funds these are and who is in control of them is, apparently, disputed.
13The Board is not prepared to permit the disputes between the applicant and the intervenor to interfere with the rights of members of the union. The following orders are intended to accomplish as much as can be done at this point. The Board therefore orders as follows:
The responding party is ordered to pay to the applicant the sum of $1840.00 forthwith;
The applicant is directed to pay this money, immediately upon receipt, to Mr Murchison;
The responding party is directed to produce to the applicant on or before December 1, 2000 the following documents:
copies of all invoices, purchase orders, contracts and change-orders thereto, any and all records of progress payments or final payments made on all contracts and any and all architect certificates certifying the performance of work, all time sheets, all remittances for WSIB, CPP, federal and provincial taxes, all bank statements, financial statements covering the time period January 2000 to October 2000 for purposes of calculating all hours worked by employees or dependent contractors for which the responding party is required to pay applicable wage rates and pay stipulated remittances under the collective agreement;
These documents are to be produced by delivering copies to the applicant or making them available for inspection by the applicant at the responding party’s offices;
Any monies received by the applicant in respect of employee benefit plan contributions and interest are to be held by their solicitors in an interest bearing trust account until there is agreement between the applicant and the intervenor as to the proper party to receive such funds and interest.
14While it is tempting to cancel the hearing set for November 20, 2000 to enable the parties to comply with these orders, since the responding party does not apparently have an operating facsimile copier, it would be impossible to communicate this decision to the responding party before that date. If it is possible for the hearing to proceed, the only issue to be determined on that date will be the quantum of damages owing, and any interest payable thereon. Paragraph 13(5) hereof will continue to apply until the parties reach agreement or until the issue is decided in this or one of the many other applications involving these parties.
“David A. McKee”
for the Board