International Union of Bricklayers and Allied Craftsmen v. Gay Construction Limited, 2000 CanLII 8508

BEFORE: Harry Freedman, Vice-Chair.

APPEARANCES: James Robbins and Joel Neville for the Lake Ontario District Council, United Brotherhood of Carpenters and Joiners of America; J. David Watson and Rick Lediard for the International Union of Bricklayers and Allied Craftsmen and The Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen and International Union of Bricklayers and Allied Craftsmen, Local 20, Oshawa; Michael Horan, Richard Gay and Meghan Thomas for the responding parties.

DECISION OF THE BOARD; May 18, 2000

1These are four related proceedings: Board File Nos. 4199-97-G and 3028-99-G are referrals of grievances to the Board for determination under section 133 of the Labour Relations Act, 1995, S.O. 1995, c. 1 (the "Act") made by the International Union of Bricklayers and Allied Craftsmen, the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen, and the International Union of Bricklayers and Allied Craftsmen, Local 20 (the “Bricklayers) in Board File No. 4199-97-G and by the Lake Ontario District Council, United Brotherhood of Carpenters and Joiners of America (the “Carpenters”) in Board File No. 3028-99-G; Board File Nos. 4200-97-R and 3030-99-R are applications made by the Bricklayers and Carpenters respectively under sections 69 and 1(4) for declaratory and other relief in respect of the responding parties.

2The Chair of the Board authorized me to sit alone to hear and determine these matters pursuant to section 110(14)(a) of the Act.

3Prior to the hearing before me, the parties had engaged in several exchanges about the production of documents and as they had not reached agreement over whether the responding parties were obliged to produce a number of documents, I received the parties’ submissions about that preliminary issue when the hearing in these matters convened. During the course of those submissions, the parties reached agreement concerning the production of a number of documents. At the conclusion of the parties’ submissions I directed production of certain documents.

4The principal of some of the responding parties had concerns about the production of certain documents because those documents were confidential and contained information which, if disclosed to third parties, would be prejudicial. Each of the applicants and their respective counsel undertook that they would maintain the confidentiality of the documents and undertook that they would not use the documents or the information they obtained from those documents for any purpose other than for the litigation of these proceedings before the Board. Counsel for the responding parties did not continue to object to the production of any documents on the basis of confidentiality once the applicants and their respective counsel providing that undertaking.

5Counsel for the Carpenters argued that the responding parties should produce documents relating to the period commencing March 1978 up to January, 2000 on the basis of section 1 (b) of a memorandum of settlement dated March 8, 1978 to which the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen and two of the responding parties were signatory. Section 1 of that memorandum of settlement provided:

The applicant agrees to withdraw the above-mentioned applications upon the express agreement and understanding of the parties that the same are being withdrawn:

(a) without prejudice to the rights or position of the said parties in respect of the subject matter of these applications or in respect of any issue or matter involved in or arising out of the same, including and without limiting the generality of the foregoing, the issue as to whether or not there has been a sale of a business from Gay to Ashly under section 55 of the Ontario Labour Relations Act or whether Gay and Ashly constitute a single employer under Section 1(4) of the Act; and

(b) that in any future proceedings whatsoever between the parties, or any of them, neither Ashly nor Gay shall argue or raise any issue or defence that the applicant should be estopped or otherwise prevented from claiming that there has been a sale of a business from Gay to Ashly or that Gay and Ashly constitute a single employer as aforesaid, by reason of any delay in the bringing of any such subsequent proceedings.

Counsel submitted that documents throughout the period from March 1978 to January 2000 would be, at the very least, arguably relevant to the issues in these four applications, and as such should be produced. Since the parties had agreed that delay would not be a factor, if the documents would have been producible one or two years after 1978, they should be produced now, since the agreement, in effect, collapses the time between the signing of the settlement and the present application. In the alternative, if 1978 were too far back, counsel suggests that at the very least, documents from the beginning of 1990 should be ordered produced. The Carpenters’ theory of their case, shared by the Bricklayers, is that there has been an ongoing relationship among the responding parties, and the documents that it seeks produced would show that over a representative period of time.

6After those submissions were made by counsel for the Carpenters (which counsel for the Bricklayers adopted), I ruled that I would not direct the responding parties to produce documents going back before 1990. While documents relating to the period between 1978 and the beginning of 1990 may well be, at the very least, arguably relevant, the Bricklayers’ application was made in 1998 and the Carpenters’ application was made in 2000. Thus, events that occurred more recently and the responding parties’ circumstances in existence in the last 10 years would be, in my opinion, much more relevant than events and circumstances that occurred or existed more than fifteen and twenty years ago. To require the responding parties to try to locate and review records and documents going back twenty-two years is, to my mind, oppressive. In my opinion, their marginal relevance is outweighed by the heavy burden ordering production of documents that old would place on the responding parties. I therefore did not require counsel for the responding parties to make submissions as to whether “pre-1990” documents need be produced.

7During the course of submissions, counsel for the responding parties stated that a number of the documents sought by the applicants did not exist. Counsel for the Carpenters acknowledged that a party is not required to create documents that do not exist in order to comply with a request for production. Ultimately, the parties either agreed to produce or I directed the responding parties to produce the following documents:

a) Corporate minute books for Gay Construction Limited, Gay Company Limited, Ashly 333 Company Limited and J & H Concrete Breaking (1983) Limited (the Principal Responding Parties);

b) statutory declarations identifying the persons who were or are officers, directors and shareholders of the corporations that are or were shareholders of the Principal Responding Parties during the period between January 1, 1990 and January 1, 2000;

c) contracts, invoices, agreements, purchase orders or any other documents relating to work performed by any one of the Principal Responding Parties for any other of the Principal Responding Parties during the period between January 1, 1990 and January 1, 2000, and in particular relating to work done by J & H Concrete Breaking (1983) Limited for Gay Construction Limited during that period of time;

d) deeds, mortgages or other documents relating to the ownership of land on which the business of the Principal Responding Parties was carried on or on which any of the Principal Responding Parties engaged in construction work during the period between January 1, 1990 and January 1, 2000;

e) rental cheques issued by the Principal Responding Parties in respect of premises occupied by the Principal Responding Parties during the period between January 1, 1990 and January 1, 2000;

f) financial statements of the Principal Responding Parties for the period between January 1, 1992 and January 1, 2000;

g) purchase orders, invoices, agreements of purchase and sale, leases, certificates of ownership or any other documents relating to any assets with an original capital value in excess of $2000 owned or leased by the Principal Responding Parties during the period between January 1, 1990 and January 1, 2000;

h) project files maintained by the Principal Responding Parties in respect of construction work performed during the period between January 1, 1992 and January 1, 2000;

i) Employee T-4 slips issued to persons employed by the Principal Responding Parties during the period between January 1, 1990 and January 1, 2000.

Counsel for the responding parties advised applicants’ counsel and the Board that the documents in paragraphs a), b), c), d), e), f), g) and i), if they exist, would be copied (at the applicants’ expense) and be available to the applicant by Friday May 19, 2000. The documents in paragraph h) would be available for inspection by counsel for the applicants at the offices of Gay Company Limited with two days’ notice to counsel for the responding parties.

8Following the decision ordering production, counsel for the Carpenters requested an adjournment of the hearings that had been previously scheduled for the end of May as he would not have had the opportunity before those hearings to review the further productions the responding parties were going to make or to inspect the project files and adequately prepare for the hearing. Counsel for the Bricklayers supported the request while counsel for the responding parties opposed the request for an adjournment. Counsel for the responding parties indicated that the responding parties have had the Bricklayers’ application hanging over their heads for more than two years and the Carpenters’ application for little more than five months. The responding parties want these matters finished. Counsel for the responding parties also pointed out that as these applications are under sections 69 and 1(4) of the Act, he will be presenting his evidence first and his first witness may well be in examination in chief for the better part of the next day of hearing.

9Following the parties’ submissions on the request for the adjournment, I gave the following oral ruling:

The request by both applicants for an adjournment of the hearings presently scheduled for May 29 and 30, 2000 is denied. The responding parties will be proceeding first to adduce their evidence and the examination in chief of their first witness might well consume the entire first day of hearing. The applicants may renew their request for an adjournment after the conclusion of the examination in chief, if so advised. Nevertheless, given the breadth of the factual issues in these proceedings and the scope of the production already made by the responding parties, it seems to me that counsel would be able to begin cross-examination of that first witness in relation to areas for which document production has been completed. I am also reluctant to lose two hearing days at this time given the Board’s difficulty in scheduling additional hearing days in the future.

10These matters are to continue before me as scheduled on May 29 and May 30, 2000. This panel of the Board remains seized with this matter.

“Harry Freedman”

for the Board