Labourers’ International Union of North America, Local 1059 v. K & S Concrete (London) Inc., 2000 CanLII 9216

Labourers’ International Union of North America, Local 1059 v. K & S Concrete (London) Inc.

2269-00-G Labourers’ International Union of North America, Local 1059, Applicant v. K & S Concrete (London) Inc., Responding Party.

BEFORE: David A. McKee, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.

DECISION OF THE BOARD; November 14, 2000

1. This is an application for the referral of a grievance to arbitration pursuant to section 133 of the Labour Relations Act, 1995, S.O. 1995 ch. 1 (the "Act"). The applicant has requested that the Board issue a decision based on the materials filed in the application. The responding party has not filed a Notice of Intent to Defend.

2. The applicant’s submissions are contained in the application itself and in a letter sent to the Board, but not to the responding party, on November 10, 2000. The combination of these two documents and the submissions contained therein are arguably sufficient to enable the Board to grant the relief sought. However, the Board is unable to accede to the applicant’s request.

3. The application itself seeks as relief:

1. a declaration that the responding party is bound by and has violated the collective agreement;

2. an order that the responding party cease and desist from violating the collective agreement; and

3. an order that the responding party “pay any and all monies owed to the appropriate funds”.

4. The Board is prepared to grant the first declaration sought. The applicant included in the materials filed a copy of a collective agreement between itself and the London and District Concrete Forming Contractors. The responding party is identified as one of the members of that association. Even if the document did not do so, the Board would be prepared to rely on the assertion of the applicant that the responding party is so bound. The applicant asserts this as a fact in paragraph 4 of the application. The responding party has, we must assume, seen that assertion and has chosen not to respond. We therefore conclude that the responding party has understood the assertion and is content to allow the Board to base a decision on that undisputed assertion.

5. The third requested order is not as clearly set out looking only at the application. The application and the grievance only request an order that some amount of money be paid to the applicant and the Trust Funds it sponsors. It is true that the grievance attaches a copy of a document entitled “September 2000 Union Remittance”. There is however, no explanation in the application or indeed in the letter of November 10, 2000 precisely what this document is. We infer that it is a document generated by the applicant demonstrating its calculation of the contributions owing. However, it is not clear that the grievance seeks contributions only for the month of September, or for any particular period of time.

6. If the applicant had pleaded that this is the union’s calculation of the amount owing, and asked for an order requiring the responding party to pay the amount of $16,408.85 forthwith, the Board would likely have granted the applicant’s request. The document attached, whatever it is, sets out a calculation of contributions owing. There is no statement of what the basis of these calculations is. By itself, it has little probative value. However, in the face of a refusal to respond by the responding party in circumstances where the responding party has been warned by the Board that it may decide the application on the basis of the facts alleged in the application, that document becomes essentially an admission by the responding party that the amount claimed is owing. Where the assertion is not made clearly or coherently, the Board cannot conclude that the responding party is in fact making such an admission. That is the essential element that is missing from a review of the application at this stage.

7. The letter of November 10, 2000 does make the applicant’s assertion clearer, although simple declaratory sentences would be more useful. That is, the Board would be more comfortable with an explanation of what the “spreadsheet” actually is. However, this letter was not copied to the responding party. Even if it had been, the Board cannot give weight to it at this stage. Rule 160 refers to the material in the application, not to subsequent documents. Even if the letter had been sent to the responding party it would not have been accompanied by notice from the Board that the facts contained in the letter might be relied upon by the Board if no response is made. When an applicant seeks to rely on rule 160 it must include all of the necessary information in the application, and may not rely on subsequently filed documents.

8. The Board is sensitive to the appearance that it is being overly technical in its response to the applicant’s request. The process under section 133 is designed to provide quick and expeditious decisions respecting grievances about which there is very little controversy. Rules 160 to 162 are intended to further that objective, and to reduce the cost to the parties and the Board in doing so. However, the Board must not lose sight of the need to render decisions that will withstand the most vigorous legal scrutiny, particularly where the decision is made on a default basis. Grievances need not and often should not be drafted with this kind of legal precision. A section 133 application should be. The Board expects parties who draft pleadings which seek to rely on these rules to meet this level of precision, even in routine and likely undisputed applications.

9. The hearing in this matter will proceed on November 16, 2000.

“David A. McKee”

for the Board