International Union of Operating Engineers, Local 793 v. Miracle Construction Limited
File No.: 1690-00-R Date: September 18, 2000
Before: Harry Freedman, Vice‑Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD
1The Board, by decision in this matter dated September 14, 2000, directed a representation vote and in the course of doing so noted that there had been some difficulty with respect to the filing of the applicant’s Certificate of Delivery. The Board at paragraphs 4 and 5 wrote:
The applicant in its transmittal letter with the application stated that the Certificate of Delivery would be filed with the Board by facsimile transmission on September 8, 2000. The Board has no record of receiving the applicant’s Certificate of Delivery until the applicant sent the Certificate of Delivery by facsimile transmission on September 14, 2000. The applicant’s London office also sent the Board a facsimile delivery report indicating that it had transmitted three pages to the Board (which we assume was the Certificate of Delivery) at 10:21 a.m. on September 11, 2000. The Board has no record of having received that document on September 11.
Rule 26 of the Board’s Rules provide, in part:
Any application filed with the Board must include the following details:
e) certificate verifying delivery of the application to the responding party or parties.
Whether the Board received the Certificate of Delivery on September 11, as the applicant suggests or on September 14 when the applicant sent the Board a copy of the Certificate of Delivery it asserts it had transmitted earlier, the Certificate of Delivery was not included with the application when it was filed with the Board. The consequence, if any, of the applicant's failure to comply with Rule 26(e) is a matter that may be raised following the taking of the representation vote.
2The Board referred to Rule 26 (e) in error. The obligation to file a Certificate of Delivery in respect of applications for certification in the construction industry is governed by Rule 130, found in Part VI of the Rules which deal with certification and termination applications in the construction industry. Rule 130 provides:
An applicant must verify in writing that it has delivered the application and other material as required by these Rules by filing a Certificate of Delivery not later than two (2) days after filing the application with the Board. The Board will not process an application that fails to comply with this Rule and the matter will be terminated.
If the applicant had indeed filed its Certificate of Delivery on September 11, 2000, then the Certificate of Delivery was filed within the time fixed by Rule 130. If however its Certificate of Delivery was not filed with the Board until September 14, 2000, when the Board does have a record of receiving it, then its Certificate of Delivery was filed after the time fixed by Rule 130.
3Therefore the Board, pursuant to section 114(1) of Labour Relations Act, 1995, S.O. 1995, c.1, hereby revokes the last sentence of paragraph 5 of its September 14, 2000 decision and replaces it with: “When the applicant’s Certificate of Delivery was filed with the Board and the consequences, if any, that arise from the date it was filed are matters that may be raised following the representation vote.”
4This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board