1151-00-R Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. 3576698 Canada Inc. c.o.b. as Michael Seltzer’s Le Biftheque Steakhouse, Responding Party.
BEFORE: Harry Freedman, Vice-Chair, and Board Members G. Pickell and G. McMenemy.
DECISION OF THE BOARD; October 6, 2000
- The Board, by decision in this matter dated October 3, 2000 noted:
Counsel for the applicant indicated that under these circumstances, he wished to file an application under section 1(4) of the Act and to obtain from counsel for the Owner the correct names and addresses for the Ontario Group, the head franchisor and Mr. Marroni. Mr. Shuchat and counsel for the Owner undertook to provide that information to counsel for the applicant by the close of business on Tuesday, October 3, 2000. Counsel for the applicant indicated that he would attempt to file an application under section 1(4) of the Act shortly thereafter.
Counsel for the applicant advised the Board by letter dated October 4, 2000 that counsel for 3576698 Canada Inc. c.o.b. Michael Seltzer’s Le Biftheque Steakhouse (the “Owner”) has refused to disclose the identity of the head franchisor. Attached to the letter from counsel for the applicant is a letter from counsel for the Owner in which she writes: “Our client takes the position that the Franchisor, Michael Seltzer is a Quebec numbered company and not the subject of this application.” Counsel for the Owner did not provide the correct name and address of the head franchisor.
- While this application, at this point, relates to the Owner, it was made clear at the hearing that counsel for the applicant reserved his right to assert that another entity, for example, Le Biftheque, ought to be the correct responding party and wished to file an application under section 1(4) of the Act. It is not up to counsel for the Owner to determine unilaterally who is and who is not the subject of this application. Furthermore, and perhaps more importantly, counsel for the Owner made an undertaking to the Board and to counsel for the applicant to provide the information that she now, apparently on instructions from her client, refuses to provide. As a member of the Law Society of Upper Canada, counsel is bound by Rule 10, Commentary 8 of its Rules of Professional Conduct in effect at the time she made the undertaking which states:
Undertakings
An undertaking given by the lawyer to the court or to another lawyer in the course of litigation must be strictly and scrupulously carried out. Unless clearly qualified, the lawyer's undertaking is a personal promise and responsibility.
While it should not have been necessary to do so, the Board directs the Owner and counsel for the Owner to provide to counsel for the applicant forthwith the correct corporate name and address of the Quebec numbered company that is the head franchisor. The Board wishes to make clear, however, that by directing such information be provided, we are not determining that the Quebec numbered company is subject to proceedings before the Board. That issue, will be determined, if necessary, at some other time.
“Harry Freedman”
for the Board