International Union of Bricklayers and Allied Craftworkers, Local 6 v. Marathon-Delco Inc.
File No.: 3109-99-R Date: August 11, 2000
Applicant: International Union of Bricklayers and Allied Craftworkers, Local 6 Responding Parties: Marathon-Delco Inc., Marathon Construction Services (1991) Inc., 245 Ouellette Ave. Investments Ltd., 608322 Ontario Inc., Al Fanelli Construction Co. Ltd., 308237 Ontario Limited, Marathon Construction Inc., 782647 Ontario Limited, Mario Mancini Contractors Ltd.
Before: Harry Freedman, Vice-Chair, and Board Members G. Pickell and A. Haward.
DECISION OF THE BOARD
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 commencing on August 24, 2000. Counsel for the applicant, by letter dated August 9, 2000 requests “…that the Board issue an order compelling the responding parties to provide certain particulars and documents in advance of the hearing.”
The office of Arthur M. Barat, counsel for Marathon-Delco Inc., Al Fanelli Construction Co. Ltd. and Marathon Construction Inc. advised that Mr. Barat is out of the office during the week, but in any event, submits that there is no need to make an order for production because his client (we assume those three responding parties on behalf of whom Mr. Barat filed a response) is in the process of assembling the relevant documentation and should be in a position to respond shortly. No other response has been received to the production request made by counsel for the applicant.
Counsel for the applicant, by letter dated July 31, 2000, set out a list of documents and information he sought 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 July 31, 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.
- Having regard to the request of the applicant, the Board directs the responding parties to produce for inspection by counsel for the applicant on or before August 18, 2000:
a) their corporate minute books and shareholder agreements;
b) employee time cards, time sheets, applications for employment, payroll records, workers’ compensation remittance records, Employment Insurance remittances and income tax deduction remittance for the period from May 1, 1998 in respect of their employees employed in the construction industry;
c) general contracts and subcontracts for all work they performed in the construction industry for the period from May 1, 1998;
d) group insurance, medical and benefit plan policies providing insurance coverage to their employees since May 1, 1998;
e) commercial insurance polices held by them;
f) deeds, leases, rental agreements or similar documents relating to the lease, rental or ownership of the premises they occupy;
g) deeds, leases, rental agreements or similar documents relating to the lease, rental or ownership of the vehicles and equipment used in the construction work they perform.
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.
Counsel for the applicant may arrange how to review the documents to be produced with other counsel prior to the hearing. If satisfactory arrangements cannot be made, then counsel for the applicant may seek further directions from the Board.
This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board