Court File and Parties
File No.: 2866-99-G Sheet Metal Workers’ International Association, Local 30, Applicant v. Burchill Mechanical Systems Ltd., Responding Party.
BEFORE: D. L. Gee, Vice-Chair and Board Members J. Knight and G. McMenemy.
DECISION OF THE BOARD; January 4, 2000
Decision
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 December 20, 1999. The Certificate of Delivery (Form A‑86) that accompanied the referral states that the applicant served the responding party with documents required by Rule 155 of the Board's Rules of Procedure by faxing such documents to (519) 623-3214 on December 17, 1999. The Registrar sent a Confirmation of Filing of a Referral of Grievance to Arbitration (Form B-67) to the responding party by facsimile transmission to (519) 623-3214 on December 20, 1999.
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).
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.
4The 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 is required to file in order to avoid default proceedings).
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).
5The 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.
6The 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.
7The 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:
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.
8Accordingly, we shall 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 can be relied on by the Board in making a determination of this matter. The Board therefore finds that:
Burchill Mechanical Systems Ltd. was at all material times bound to the Collective Agreement between the Ontario Sheet Metal and Air Handling Group, and the Sheet Metal Workers’ International Association and Ontario Sheet Metal Workers’ Conference effective from May 1, 1998 until April 30, 2001 (the “Collective Agreement”);
Burchill Mechanical Systems Ltd. violated Clause 8.2 and Article 22 of Appendix “K” of the Collective Agreement when it failed to provide Messrs. MacDonald and Smith with a record of employment as provided for in the Collective Agreement and further failed to pay Messrs. MacDonald and Smith monies they were entitled to pursuant to the terms of the Collective Agreement until such time as a record of employment was provided. The total amount owing to Messrs. MacDonald and Smith is $13,051.18 and $2,537.85 respectively;
the Lieutenant Governor in Council has established a schedule of fees to be charged to parties in proceedings pursuant to section 133 of the Act and, pursuant to such schedule, the applicant paid $214.00 in order to file its referral with the Board.
9In view of the Board's findings in paragraph 8 above, the Board therefore:
declares that Burchill Mechanical Systems Ltd. is bound by the Collective Agreement;
declares that Burchill Mechanical Systems Ltd. violated the Collective Agreement;
orders Burchill Mechanical Systems Ltd. to forthwith provide Dan MacDonald and Ed Smith with the records of employment to which they are entitled; and
orders Burchill Mechanical Systems Ltd. pay the applicant the amount of $15,589.03 in damages and $214.00 in costs forthwith.
10Having regard to the foregoing, the hearing scheduled for January 12, 2000 is hereby cancelled.
“D. L. Gee”
for the Board