2007-00-G Universal Workers Union, Labourers’ International Union of North America Local 183, Applicant v. Plastina Investments Limited, Responding Party.
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; December 18, 2000
This is a referral of grievance pursuant to se. 133 of the Labour Relations Act, 1995 (the “Act”) in which the Board issued a decision dated October 17, 2000 pursuant to Rule 160 of the Board’s Rules of Procedure. Rule 160 states as follows:
If a responding party does not deliver and file a "Request for Hearing and Notice of Intent to Defend" (Form A‑87) in the way required by these rules, he or she may automatically be deemed to have accepted all of the facts stated in the application, and the Board may cancel a hearing (if one is scheduled), and decide the case (or part of the case) upon the material before it without further notice.
The responding party was served with documents which made it clear as to what was required in the way of a response. Paragraph 7 of the first decision in this matter states:
The only thing a responding party must do to avoid default proceedings is to complete the Form A-87 supplied by the applicant and deliver it to the Board and the applicant within five days of the date of the Board’s Confirmation of Filing (Form B-67). Form A-87 requires little more than the responding party’s name and address and an assertion that the responding party wishes to defend against the grievance referral. The substance of that defence is contained in the response which is not due until 9:30 a.m. on the day set for hearing.
In the October 17 decision the Board directed the responding party, Plastina Investments Limited, to produce certain documents to the applicant. Paragraphs 11 (d) and 12 state:
In view of the Board’s findings in paragraph 10 above, the Board therefore:
(d) directs the responding party to produce to the applicant within five working days of the date of this decision the documents listed in paragraphs 4 and 5 of Schedule A of the Referral of Grievance with respect to the Touchstone Homes and Grand Valley Homes projects;
The Board will remain seized with respect to any damages and expenses payable to the applicant in the event that the parties are unable to agree. This panel of the Board is not seized with this matter.
On November 14, 2000 the applicant wrote to the Board advising that the responding party failed to provide any documents to the union. The union further states it was advised by the responding party that it would not be providing any documents.
The applicant then made its own enquiries and estimated the amount of damages owing to be $2,565.36. The applicant asked for an order to direct the responding party to make the payment of damages or in the alternative to put this matter on for hearing.
The Board, (differently constituted) issued a further decision in this matter dated November 16, 2000. The Board directed the applicant to serve a copy of the November 14, 2000 letter on the responding party and advised the responding party in para. 3 of that decision as follows:
The responding party is advised that a failure to respond to or contradict the assertions of the applicant may result in the referral being decided without a hearing and without further notice to the responding party on the basis only of the applicant’s submissions. If the responding party wishes to dispute the applicant’s assertions it must file a Notice of Intent to Defend with the appropriate filing fee. The responding party must do so on or before 5:00 p.m. on November 27, 2000.
By letter dated November 27, 2000 counsel for the responding party wrote to the Board asking that the Board “rescind its decision of October 17, 2000 and reschedule this matter for a hearing on its mertis.”
It is not clear to the Board what “rescind” its decision means in these circumstances. If this is a request for reconsideration it is untimely under Rule 96 and in these circumstances the Board would not extend the time for filing such a request.
Counsel for the responding party submits that the responding party had intended to defend this grievance, that the responding party made an innocent mistake by filing its Notice of Intent to Defend in anticipation of the hearing and should therefore not be prejudiced. Counsel asserts it was a reasonable mistake just as the Board’s personnel had erred in telling the responding party that it could still participate in this proceeding if it filed its late Notice to Defend with the prescribed fees.
Even if this were a timely reconsideration request the Board would not be persuaded to reconsider its decision. The documents that an applicant is required to serve on the responding party clearly set out what is required. Even if the responding party does not pay too much attention to those documents the Board's confirmation makes it clear that if the responding party does not respond there are consequences.
There appear to be a misunderstanding in terms of the late filing of Notice to Defend. If the matter goes to hearing with respect to outstanding issues, such as damages, any responding party may participate in the hearing to the extent permitted by the Board. The Board may or may not allow a responding party to lead evidence with respect to any issue still outstanding. A responding party will not be permitted to re-litigate matters that have already been decided. A responding party in order to participate, to the extent permitted by the panel of the Board hearing this matter, must first file a Notice to Defend and pay the required fee even though at this point it is a late filing.
In the letter of November 27, 2000 counsel for the responding party disputes the applicant’s assertions regarding quantum of damages contained in its letter of November 14, 2000. A Notice of Intent to Defend has been filed together with the appropriate filing fee.
The Registrar is directed to schedule this matter for hearing to deal with the issue of damages and expenses payable to the applicant.
This panel is not seized of this matter.
“Inge M. Stamp”
for the Board