1320-99-R The International Union of Bricklayers and Allied Craftworkers, Local 31 now known as Brick and Allied Craft Union of Canada, Local 31, Applicant v. 1249762 Ontario Inc. o/a Mega City Tiling and Maran Ceramic Tiles Inc., Responding Parties v. Labourers’ International Union of North America, Local 183, Intervenor.
1332-99-G The International Union of Bricklayers and Allied Craftworkers, Local 31 now known as Brick and Allied Craft Union of Canada, Local 31, Applicant v. 1249762 Ontario Inc. o/a Mega City Tiling and Maran Ceramic Tiles Inc., Responding Parties.
BEFORE: Harry Freedman, Vice-Chair, and Board Members G. Pickell and G. McMenemy.
DECISION OF THE BOARD; September 25, 2000
1The Board, by decision in this matter dated February 23, 2000 directed the responding parties to produce 14 categories of documents for inspection by the applicant prior to the pre-hearing conference that had been scheduled before the Vice-Chair of this panel. After the pre-hearing conference was held, the Board (comprised of this Vice-Chair) issued a decision dated March 15, 2000 containing further directions to the parties, noted that the applicant had sought reconsideration of the Board’s February 23, 2000 and also directed the applicant to advise the Board on or before March 24, 2000 whether it wished to have the Board determine its request for reconsideration.
2The applicant, in its letter of March 24, 2000, advised the Board that it wished to pursue its request for reconsideration and, in addition, sought to enlarge the scope of the production order by seeking the records relating to the employees of the responding parties for the period beginning six months prior November 1996 and all other records from the date that Maran Ceramic Tiles Inc. (“Maran”) signed the collective agreement with the applicant, that is, from September 1995 up to the present time.
3The Board, in its February 23, 2000 decision determined that the responding parties should produce a variety of business records for the period between February 1997 and July 1999 (except in paragraph 5 (f) where the Board used the date February 1977 which was, as the applicant noted, a typographical error). The applicant, in its production request, noted that February 1997 was six months prior to the incorporation of 1249762 Ontario Inc. o/a Mega City Tiling (“Mega City”) but sought business records without reference to any period of time except for the records relating to employees of the responding parties. It was originally content to have those records for the period between February 1997 and July 1999, but amended its request to include employee records of Maran from May 1996.
4The Board in paragraph 3 of its February 23, 2000 decision indicated the basis for its production order in the following terms:
It appears to the Board that all of the documents sought by the applicant from the responding parties are arguably relevant to the application in Board File No. 1320-99-R and therefore ought to be produced, at least in respect of the period from February, 1997 to the date of the application, July 30, 1999. Indeed, much of what the applicant seeks should be produced in any event by the responding parties pursuant to the obligations imposed on them by sections 69 (13) and 1 (5) of the Act.
The applicant in its request for reconsideration submits that limiting the time period which the documents to be produced relate to prevents it from having access to information that is essential to its prosecution of its case. It also asserts that it only learned that the principal of Maran had suffered a stroke in November 1996 and had ceased carrying on business after that time, and had subcontracted its last job to another tile contractor after the Board released its February 23, 2000 decision.
5The applicant contends that the stroke suffered by the principal of Maran justifies the Board reconsidering its production decision because that was “new evidence” that only came to the attention of the applicant after the Board’s decision was issued. As counsel for Maran points out in response to the applicant’s request for reconsideration, paragraph 3 of schedule A to the response filed by Maran indicated that the principal of Maran had suffered a serious illness and had not been conducting business for Maran since his illness and that Maran had not performed any work nor had any employees since May 1997 and had subcontracted out its last job. Although the precise date when Mr. Maran became ill was not disclosed in the response, the applicant was on notice that Maran took the position it had ceased carrying on business as of May 1997.
6In any event, the issues in this case revolve around the relationship between Maran and Mega-City and their principals (who are father and son). Since Mega-City did not even come into existence until August 1997, the Board is not satisfied that the documents relating to the period prior to February 1997 will be of much significance. Thus whether discovering that the principal of Maran had suffered a stroke in November 1996 is new evidence, that fact does not, in our view, warrant a change to the production order the Board made. We are also not persuaded that obtaining documents from Maran relating to its business from the date it signed the collective agreement to the present is necessary for the applicant to prepare and present its case. In our view, it will have sufficient material from which to argue that Maran either sold its business to Mega-City or that Mega-City and Maran are under common control and direction and ought to be declared a single employer based on the material that the Board had ordered produced. The marginal utility that might be had from obtaining further disclosure is outweighed by the burden such additional disclosure would impose on Maran.
7For these reasons, the applicant’s request for reconsideration of the Board’s February 23, 2000 decision is dismissed.
"Harry Freedman"
for the Board