0178-00-R Ontario Pipe Trades Council, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, Applicant v. Marman Mechanical Inc., Coote-Marman Mechanical Services Inc., 1150982 Ontario Inc. c.o.b. Apple Mechanical, and 1350201 Ontario Inc. c.o.b. Nu-Flow Systems, Responding Parties.
BEFORE: Harry Freedman, Vice-Chair, and Board Members G. Pickell and G. McMenemy.
DECISION OF THE BOARD; September 13, 2000
This is an application under sections 69 and 1 (4) of the Labour Relations Act, 1995, S.O. 1995, c. 1 (the "Act") for declaratory and other relief which is scheduled for hearing before the Board on September 27, 2000. Counsel for the applicant, by letter dated September 8, 2000 requests “…the Board to Order pre-hearing production of the following particulars and documents:” and then sets out a 10 paragraph list of particulars and documents sought.
Counsel for 1150982 Ontario Inc. c.o.b. Apple Mechanical (“Apple”) and 1350201 Ontario Inc. c.o.b. Nu-Flow Systems (“Nu-Flow”) submits that there is no need to make an order for production because her client (we assume she is referring to both Apple and Nu-Flow) was requested by her to assemble the requested documentation after she had received the same request from counsel for the applicant on September 8, 2000. Counsel for Apple and Nu-Flow also advises that once that material is assembled, she will review it and determine what information will be provided to counsel for the applicant. Counsel for Apple and Nu-Flow points out that counsel for the applicant has not given the responding parties even one full day to respond to his request. She submits that it is premature for the Board to make the order requested as the responding parties have not provided any basis for the applicant to suggest that they will not meet their obligations to produce relevant documents and information prior to the hearing.
Counsel for the applicant, in his letter dated September 8, 2000, sets out a list of documents and information he seeks from the responding parties. In our view, there is a difference between directing production of documents and directing a party to provide information. Certainly, the hearing of this type of application could be shortened if the responding parties provide information and 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) 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]
There is, in our opinion, no obligation on the responding parties to answer the questions asked of them by counsel for the applicant in his letter of September 8, 2000 prior to the hearing of this matter. 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. Those sections do not, in our opinion, oblige the responding parties to either create documents or provide information in the form of answers to questions prior to the hearing. In our view, however, to the extent that the relevant documents requested in that letter exist, then they should be produced for inspection by counsel for the applicant prior to the hearing.
- The Board directs the responding parties’ attention to Rule 86 of the Board Rules which provides:
A responding party in an application under section 69 and/or subsection 1(4) of the Act must file with the Board and deliver to all parties a list of all relevant documents and copies of those documents not later than ten (10) days after the response was due to be filed.
Rule 86 requires the responding parties to list all relevant documents and to provide a copy of those documents well before the scheduled hearing.
In view of the very short period of time between the request for production addressed to the responding parties and the request filed with the Board for a Board order and, more importantly, having regard to the prompt response by counsel for Apple and Nu-Flow indicating that she is endeavouring to obtain and review the requested information, the Board accepts counsel’s submission that it is premature to issue the order requested at this time. Nevertheless, since the hearing in this matter is scheduled for September 27, 2000, if the relevant documents are not produced on or before September 18, 2000, counsel for the applicant may renew his request for an order requiring the responding parties to produce documents for inspection.
The applicant’s request for an order requiring production of documents and particulars is dismissed without prejudice to the applicant renewing its request after the responding parties have had a reasonable opportunity to assemble and review the documents and information sought by the applicant.
This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board