Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America v. Ashwood Roofing Ltd.
File No.: 3174-99-G Date: February 8, 2000 Before: Harry Freedman, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
Decision of the Board
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 applicant filed the referral on January 27, 2000 and according to the certificate of delivery completed by the applicant, had the necessary documents relating to the referral delivered to the responding party on January 27, 2000.
2At paragraph 8 of the referral the applicant indicated that it did not wish to have the Board determine the referral without a hearing should the responding party fail to file a Request for Hearing and Notice of Intent to Defend. Subsequently, counsel for the applicant, by letter dated February 7, 2000 has requested leave of the Board to amend its referral by changing paragraph 8 of the referral to indicate that it now wants the Board to determine the referral without a hearing should the responding party fail to file a Request for Hearing and Notice of Intent to Defend. In addition, it wishes to add a number of statements in support of its claim for relief. Counsel for the applicant states in that letter that the letter was forwarded to the responding party by facsimile transmission.
3The applicant seeks damages in the amount of $17,000.00. The facts pleaded in support of that claim assert that the responding party is bound to a collective agreement with the applicant, the responding party violated that collective agreement by failing to make remittances in respect of work performed between March 1, 1999 and December 31, 1999 and that as a result, the responding party owes damages to the applicant in the amount claimed.
4It appears that the applicant has sought to amend the referral to have the Board deal with the matter without a hearing after the time for the responding party to file a timely Request for a Hearing and Notice of Intent to Defend. Indeed, the applicant relies on the responding party’s failure to do so in support of its requested amendment.
5The original referral indicated that the applicant was content to have the matter proceed to a hearing even if the responding party failed to file a timely Request for a Hearing and Notice of Intent to Defend. It was not put on notice by the applicant that the matter would be disposed of without a hearing. It was only after there was a default in responding to the referral that the applicant seeks to amend its referral to have the Board now determine the matter without a hearing. In our view, it is simply too late to do so. The change would, in our opinion, prejudice the responding party. It may have chosen not to file a timely notice because the applicant had indicated that it was not seeking to have the Board determine the matter without a hearing. Furthermore, the bald assertion that the responding party owes the applicant $17,000.00 is not supported by any other facts. There is no indication of how many hours of work were done by the applicant’s members in respect of whom remittances had not been made or who those members actually were. Furthermore, the Board notes that the Labour Relations Officer appointed to attempt to effect a settlement of this matter has scheduled a meeting for February 9, 2000. Furthermore, the Board notified the responding party that the hearing would take place on February 15, 2000.
6Under these circumstances the Board declines to grant the amendment sought. The responding party had already received notice of an officer’s meeting which is being convened to endeavour to effect a settlement and notice of a hearing. It understood from the applicant’s referral that the applicant did not want to have the matter determined without a hearing. Finally, there are insufficient material facts alleged in the material that would, in our view, support the claim for damages as pleaded by the applicant. Therefore, the Board dismisses the request for the amendment of the referral. If no settlement is reached prior to the hearing, this matter will proceed as scheduled to a hearing before the Board on February 15, 2000.
7This panel of the Board is not seized with this matter.
"Harry Freedman"
for the Board