2067-00-G Universal Workers’ Union, L.I.U.N.A., Local 183, Applicant v. 675602 Ontario Ltd., Responding Party.
BEFORE: Harry Freedman, Vice-Chair, and Board Members G. Pickell and A. Haward.
DECISION OF THE BOARD; October 24, 2000
This is a referral of a grievance to the Board for determination under section 133 of the Labour Relations Act, 1995, S.O. 1995, c. 1, (the “Act”). The referral was made on October 12, 2000. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on October 13, 2000 by the applicant having delivered a copy of the necessary documents required by Rule 155 of the Board’s Rules of Procedure to the responding party by giving them to Priority Post Courier, Canada Post on October 12, 2000 who assured the applicant that they would be delivered on Friday, October 13, 2000 by no later than 4:00 p.m. The Registrar faxed a Confirmation of Filing of a Referral of Grievance to Arbitration (Form B-67) to the fax number provided for the responding party in the application, (905) 686-6675 on October 16, 2000 at 10:47 a.m.
As of the date of this decision, the responding party has not filed a Request for Hearing and Notice of Intent to Defend/Participate (Form A-87).
As noted in paragraph 1 above, the referral was filed with the Board on October 12, 2000 and, based on the certificate of delivery appended to the application, the application and the other requisite materials were delivered to the responding party on October 13, 2000. (The date of delivery of a document, according to Rule 23 of the Board’s Rules of Procedure, “…is the date that document is received by another party…”, except where it is received by that other party after 5:00 p.m. or when it is sent by regular mail.) Thus, it is clear that the applicant filed its application with the Board one day before the application and other materials were delivered to the responding party.
Rule 155 of the Board’s Rules of Procedure provides, in part:
Before, or at the same time as, filing its application with the Board, the applicant must deliver the following to the responding party:
Thus, it is clear that the Board Rules require that the applicant must deliver to the responding party (that is, the responding party must receive) the application and other requisite material before or at the same time as that application is filed with the Board. (In our opinion, an application that is delivered to the responding party and filed with the Board on the same day complies with Rule 155 since the Board considers the time an application was filed as being the day on which the application was filed. See Harnden & King Construction Ltd., [1987] OLRB Rep. Dec. 1510 at 1512; Bond Place Hotel, [1982] OLRB Rep. Aug. 1135 at 1137-38; Windsor Tube & Metal Inc., [1977] OLRB Rep. June 396.) That was not done in this case.
Under the circumstances, as the applicant has failed to comply with Rule 155, the Board is not prepared to proceed to determine the merits of this matter at this stage, despite the responding party having failed to file a timely Request for Hearing and Notice of Intent to Defend/Participate (Form A-87).
The applicant will be required, at the hearing of this matter, to persuade the Board that it is advisable to exercise its discretion under Rule 44 and relieve against the strict application of the Rules before the Board deals with the merits of the application.
This matter shall proceed to hearing as scheduled on Thursday October 26, 2000.
This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board