Brick and Allied Craft Union of Canada v. Elcana Masonry Inc.

0643-00-R Brick and Allied Craft Union of Canada (formerly The Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen) on behalf of itself and its Locals 2 and 12, Applicant v. Elcana Masonry Inc. and 652067 Ontario Inc. and Stan Vanderploeg Ltd. and Gerrit Vanderploeg & Co. Limited, Responding Parties.

0644-00-G Brick and Allied Craft Union of Canada, Local 2 (formerly known as the International Union of Bricklayers and Allied Craftworkers, Local 2), Applicant v. 652067 Ontario Inc. o/a Elcana Masonry Inc., Responding Parties.

0645-00-G Brick and Allied Craft Union of Canada, Local 12 (formerly known as the International Union of Bricklayers and Allied Craftworkers, Local 12), Applicant v. Gerrit Vanderploeg Masonry and Elcana Masonry Inc., Responding Parties.

BEFORE: Harry Freedman, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.

DECISION OF THE BOARD; September 28, 2000

1. Counsel for the applicants by letter dated September 26, 2000 requested that the Board make a production order in relation to these three applications. The applicants filed an application for declaratory and other relief under sections 69 and 1(4) of the Labour Relations Act, 1995, S. O. 1995, c. 1 (the "Act") (Board File No. 0643-00-R). Brick and Allied Craft Union of Canada, Local 2 filed a referral of a grievance to the Board for determination under section 133 of the Act (Board File No. 0644-00-G) and Brick and Allied Craft Union of Canada, Local 12 also filed a referral of a grievance to the Board for determination under section 133 of the Act (Board File No. 0645-00-G). Counsel for the applicants, in the transmittal letter with those three applications advised the Board that the applicants request that the Board hold the referrals under section 133 of the Act in abeyance pending the outcome of the application under sections 69 and 1(4).

2. Under these circumstances, it is appropriate to adjourn the applications in Board File Nos. 0644-00-G and 0645-00-G pending the determination of the application in Board File No. 0643-00-R. Having regard to the request of the applicants, the Board hereby adjourns the referrals in Board File Nos. 0644-00-G and 0645-00-G sine die. The applicants may request that the Board proceed with those two matters following the determination in Board File No. 0643-00-R within thirty days of that determination. Should no request be made to proceed within that time, those two referrals will be deemed terminated. Furthermore, in these circumstances, the Board hereby extends the time under Rule 158 for the responding parties to file a Request for Hearing and Notice of Intent to Defend/Participate (Form A-87) in Board File Nos.

0644-00-G and 0645-00-G to 10 days after the date the applicant advises the Board and the responding parties that it wishes those two matters to be set down for hearing.

3. Schedule "A" to the application in Board File No. 0643-00-R contains 16 paragraphs which refer to appendices "A" through "N" being attached to the application. The application material that was filed with the Board did not have those appendices attached.

4. Counsel for the applicants in his September 26, 2000 letter requests that the Board order the responding parties to provide the applicants with pre-hearing production of all relevant documents and particulars and specifically sought the documents and information set out in 12 categories listed in that letter. Counsel wishes to have that material produced on or before October 3, 2000. The first day of hearing in this matter is scheduled for October 4, 2000. It does not appear from the material filed as if counsel requested those documents and particulars from the responding parties before seeking a Board order or if so, whether the responding parties object to producing those documents or providing the information requested.

5. It appears from a perusal of the list of documents sought by the applicants that most, if not all, of them appear to be at least arguably relevant to the issues raised in this proceeding. Nevertheless, before making a production order, the Board is of the view that the responding parties should have an opportunity to consider the request and determine which documents, if any, they are prepared to produce for inspection prior to the hearing and if they are not prepared to produce some of the documents requested, why they object to doing so. The Board therefore directs the responding parties to advise counsel for the applicants which of the documents listed in counsel's letter of September 26, 2000 they are prepared to produce and which documents they object to producing and the basis of their objection on or before Monday, October 2, 2000 and to have those documents to which they do not object to producing available for inspection by counsel for the applicant at that time.

6. In addition to seeking production of documents, counsel for the applicants, in his letter dated September 26, 2000, also described the particulars 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 before the hearing. Indeed, both sections 1 (5) and 69 (13) require the responding parties to adduce 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)) at the hearing of the application and to that end are required to produce 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 26, 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 evidence about 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.

7. 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. It appears that the responding parties have not filed a response to the application in Board File No. 0643-00-R.

8. In view of the date on which the counsel for the applicants made the request for a production order and its proximity to the first day of hearing in this matter, the responding parties' failure to file responses to the application and issues relating to the production of documents and request for particulars are best left to be determined by the panel of the Board assigned to hear this application.

9. In summary, the applications in Board File Nos. 0644-00-G and 0645-00-G are adjourned sine die pending the determination in Board File No. 0643-00-R. The responding parties are directed to advise the applicant on or before October 2, 2000 which documents they are prepared to produce for inspection and have them available for inspection by counsel for the applicants at that time and which documents they object to producing and the reasons for objecting. The hearing into the application in Board File No. 0643-00-R is scheduled to commence on October 4, 2000.

10. This panel of the Board is not seized with this matter.

"Harry Freedman"

for the Board