Ontario Labour Relations Board
File No.: 0268-00-R
Drywall Acoustic Lathing and Insulation Local 675, United Brotherhood of Carpenters and Joiners of America, Applicant v. R.J. Wilcox Partitions & Ceiling Systems Inc. and Wilcox Interior Inc. and Tanya Ruth Ann Genest c.o.b. as Westboro Construction and Wilcox Diversified Inc., 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. The application was filed on April 25, 2000 and was delivered to the responding parties, including Tanya Ruth Ann Genest c.o.b. Westboro Construction (“Westboro”), by courier on that date. The Board’s Confirmation of Filing of Application Under Section 69 and/or Subsection 1(4) of the Act (Form B-16) was sent by courier to Westboro on April 28, 2000. The Board, by decision in this matter dated August 24, 2000 directed the responding parties, including Westboro, to produce a number of documents to the applicant by September 12, 2000.
Counsel for Westboro, by letter to the Registrar dated September 8, 2000 and which was only brought to our attention in the afternoon of September 12, 2000 requests an extension of time to file a response on behalf of Westboro, an extension of time to comply with the Board’s order of August 24, 2000 and an adjournment of the hearing scheduled in this matter for September 14 and 15, 2000. Counsel stated that Westboro had just retained him in connection with this matter. Counsel further stated that Westboro had not responded to the application within the time prescribed by the Rules because she believed that she had been named as a responding party in error and she neither understood the nature or significance of this application.
This application was filed with the Board in April. The applicant also provided Westboro with the requisite notice in Form C-9 (according to the Certificate of Delivery filed with the application) at that time. The Board issued a notice of hearing in July and issued the decision directing production of documents in August. All of that material had been sent to Westboro and there is no suggestion that it had not been received by Westboro. The Form C-9, which was delivered to Westboro in April together with the application provides in part:
This Notice and other material are being sent to you because you are a Responding Party or because you have been identified in paragraph 2 of the application or response as a person who may be affected by the application. An application under the Labour Relations Act is a legal proceeding and may affect your legal rights and obligations. You may wish to seek legal advice immediately.
IF YOU ARE A RESPONDING PARTY, your response to the application must be filed in the offices of the Board, 2nd floor, 505 University Avenue, Toronto, no later than ten (10) days after the Application under Section 69 and/or Subsection 1(4) of the Act was delivered to you….
If you do not file your response and other required documentation in the way required by the Board's rules, the Board may not process your response and documents, and may decide the application without further notice to you. Furthermore, you may be deemed to have accepted all the facts stated in the application.
In our opinion, Westboro had more than adequate time to retain and instruct counsel. She knew or ought to have known by the beginning of May that she had been named in a legal proceeding that could affect her legal rights and obligations. The notice also made it clear that she might wish to seek legal advice immediately. Apparently, she only chose to retain counsel less than two weeks prior to the scheduled hearing.
While counsel acted promptly upon being retained to secure an extension of time to file a response and comply with the Board’s production order and to seek an adjournment of the hearing, there is no justification for granting any of the requests made by counsel. In our view, a responding party cannot wait until the last moment to retain counsel and then expect to have the Board delay the hearing of the application and extend the time for filing a response because counsel had just been retained.
In the absence of the applicant’s consent, Westboro’s request for an extension of time and an adjournment of the hearing scheduled for September 14 and 15 is dismissed.
This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board