1735-00-R Drywall Acoustic Lathing and Insulation Local 675, United Brotherhood of Carpenters and Joiners of America, Applicant v. Lopes Drywall and Acoustics Inc. and R.G.L. Drywall Inc., Responding Parties v. Masonry Council of Unions Toronto and Vicinity, Intervenor.
BEFORE: Harry Freedman, Vice-Chair, and Board Members J. G. Knight and A. Haward.
DECISION OF THE BOARD; December 6, 2000
This is an application under sections 69 and 1(4) of the Labour Relations Act, 1995, S. O. 1995, c. 1, as amended (the “Act”) for declaratory and other relief. It was scheduled for hearing before the Board on November 30, 2000, but was adjourned at the request of counsel for the intervenor with the consent of the other parties. The Registrar fixed January 2, 2001 as the next date for the hearing of this matter on the agreement of the parties.
Counsel for the applicant, by letter to the Registrar dated December 6, 2000, advised the Board and the other parties that the applicant was also seeking a declaration in this application that there is no collective agreement between R. G. L. Drywall Inc. and the intervenor and to the extent that it is necessary to do so, seeks to have the Board treat this application as an application for declaratory relief under section 66 of the Act. In our view, this is an issue that can be dealt with by the panel of the Board assigned to hear this application as a part of the remedial issues, if any, that the Board may be required to resolve should the applicant be successful.
Counsel for the applicant in that December 6th letter also requests that the Board “order the responding party employers to produce all relevant documents in accordance with sections 1(5) and 69(13) of the Act.” He then lists the documents he seeks to have the Board order the responding parties produce including, but not limited to: “all documentation reflecting their shareholders, officers, directors, customers, accountants, bank accounts and individuals having signing authority for those accounts, employees, subcontractors, leases, contracts and any other relevant documentation.”
It does not appear from the material filed as if counsel requested those documents from the responding parties before seeking a Board order or if so, whether the responding parties object to producing those documents. It appears that many, if not all, of the kinds of documents sought by counsel for the applicant are at least arguably relevant to the issues raised in this application. Nevertheless, before making a production order, the Board is of the view that the responding parties should have an opportunity to consider the request and determine what documents, if any, they are prepared to produce for inspection prior to the hearing and if they are not prepared to produce some of the documents requested, why they object to doing so.
Certainly, the hearing of this type of application could be shortened if the responding parties produce documents that are relevant to the issues in dispute well before the hearing. Indeed, both sections 1(5) and 69(13) require the responding parties to disclose the evidence that is relevant to the issue of whether the responding parties are under common control or direction (in the case of section 1(5)) and whether a sale of a business has occurred (in the case of section 69(13)) and to that end are required to disclose relevant documents. Sections 1(5) and 69(13) of the Act provide:
1 (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.
69 (13) Where, on an application under this section, a trade union alleges that the sale of a business has occurred, the respondents to the application shall adduce at the hearing all facts within their knowledge that are material to the allegation. [emphasis added]
The obligation on responding parties imposed by sections 1(5) and 69(13) of the Act are to adduce at the hearing the facts within their knowledge relevant to the issues described in those sections. While there is an obligation to adduce relevant facts at the hearing, sections 98(1) and 111(2)(b) of the Act, in our view, permit the Board to order production of documents prior to the hearing. Therefore, to the extent that the relevant documents requested in that letter exist, then we expect the responding parties to produce those documents voluntarily for inspection by counsel for the applicant prior to the hearing, unless there are proper reasons not to do so.
The responding parties are directed to file with the Board and deliver to counsel for the applicant within 10 days of the date of this decision a list of the documents they are prepared to produce and a list of the documents, if any, that they refuse to produce and the reasons for their refusal and to make available to counsel for the applicant at that same time for inspection the documents they are prepared to disclose. In view of the time between that date and the scheduled date of hearing, if there are production issues remaining in dispute, then those issues will have to be dealt with by the panel of the Board assigned to hear this matter on January 2, 2001.
This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board