0788-01-R Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Tri-Can Contracting Incorporated, Responding Party.

0965-01-R Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Tri-Can Contracting Incorporated, and Innovative Flooring Inc., Responding Parties.

0966-01-U Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Tri-Can Contracting Incorporated, and Innovative Flooring Inc., Responding Parties.

BEFORE: David A. McKee, Vice-Chair.

DECISION OF THE BOARD; October 24, 2001

1In Board File No. 0788-01-R, the Board made a production order in a decision dated September 10, 2001. The Board acknowledged that there might be some difficulty in obtaining some of the documents. It directed, as a first step, that “the responding party is to make its very best efforts to obtain these documents from any other party which is in possession of them” (paragraph 8). The applicant has written to the Board stating that it has received no documents relating to the “Pottery Barn Project at the Eaton Centre”. The responding party in that application, Tri-Can Contracting Incorporated (“Tri-Can”) asserts that it sent to the applicant “all the documents in its possession”. That is not what the Board directed it to do.

2In its September 10, 2001 decision, the Board indicated that if Tri-Can’s “very best efforts” were to no avail, the Board would be prepared to set a hearing date in order that the documents be produced pursuant to a summons. The applicant has suggested another method, with reference to files that were not before me when I drafted the first decision. It appears that the applicant believes that the contracting parties on the Pottery Barn job may have included Innovative Flooring Inc. (“Innovative”), a party that is a responding party to a related employer application in Board File No. 0965-01-R.

3Tri-Can has neither asked the Board to reconsider its September 10 decision, nor made any submission that the order was impossible to comply with, nor made any suggestion it attempted to comply with the decision. There is no need to consume hearing time to enforce the mechanics of the production of documents which are clearly relevant to issues before the Board. Therefore, the Board consolidates all three of these files, at least at the pre-hearing stage. Further, the Board orders both Tri-Can and Innovative as responding parties in these applications to produce documents as follows.

Production

4In order that parties may be better able to assess their positions, certain documents must be produced. From the responding parties, the Board wishes to see essentially all documents relating to the work performed by the individuals listed on the sites identified. These may be in the possession of the responding parties or of an intermediary sub-contractor. The responding parties are to make their very best efforts to obtain these documents from any other party which is in possession of them. If they are unable to do so, the Board will schedule a day of hearing in order that the necessary documents may be produced pursuant to a summons.

5The responding parties are to produce all documents relating to the work performed on any site referred to in the pleadings in Board File No. 0788-01-R, and the remuneration paid, to the persons whose status is in dispute, including all documents between the responding parties and any subcontractor or sub-subcontractor who stands in between the responding parties and the individual. These documents should include, but are not limited to:

All contracts between the owners of the premises or the general contractors from whom the responding parties obtained the work performed by the individuals.

All records of the responding parties with respect to the progress of the work including any reports to the owner/general contractor, internal minutes, orders to subcontractors of to the individuals directly or any other form of record.

All records of monies paid out by the responding parties to any third party in respect of the work performed. All records of monies paid out by subcontractors of the responding parties to any other third party and so on down the line to the individuals who actually performed the work. These records shall include invoices, purchase orders, cheque requisitions, demands for payment, cheque registers, copies of cancelled cheques, and any other record of whatever sort. Again the responding parties are to make their best efforts to obtain copies of these documents from subcontractors of other third parties. At the end of the day the Board will wish to see a chain of documents which ends with a cheque to the individual.

All other records kept internally by the responding parties or by any third party with respect to the performance of work on the projects or by the individuals in dispute.

6These documents are to be produced to the other parties on or before November 13, 2001 or such other date as the parties may all agree on. The Board is not to be provided with copies of these documents at this point. If the applicant asserts that the documents produced are deficient, and the responding parties are unwilling or unable to produce these documents, the applicant should advise the Board what it wishes to do. As noted, a hearing may be scheduled at that point.

7Following that exchange, the intervenors and the applicant are to produce all of the documents in their possession, or in the possession of their clients or members, which form part of the chain of documents specified above. They (and the responding parties) shall also produce any other documents on which they intend to rely at any stage of the hearing. These documents shall be produced to the other parties on or before November 30, 2001. They are not to be produced to the Board at that time.

8If there are further submissions to be made with respect to the order of proceedings, the parties are to address their comments to the Board at that time. If it is necessary to refer to some of the documents already produced at that time, they should be included with the parties’ submissions to the Board. The Board would appreciate completeness in the production of the first party making submissions so that it is not necessary to refer to three piles of documents.

9If no party wishes to make submissions, the applicant should advise the Board of this fact on December 6, 2001. On that date the intervenor shall advise the Board of how many persons it seeks to put forward as having status to intervene, and the number of days it will take to hear the evidence and argument with respect to each one. The intervenor is directed to file a complete set of documents with respect to each person within 10 days of these submissions. It would be the Board’s intention to hear all evidence and argument regarding the status of the intervenors first, and then to render a decision on their status. Which issues are addressed in which order after that will be determined by the panel hearing these applications.

10I will remain seized of any pre-hearing procedural matters. I am not seized of the merits of these applications.

“David A. McKee”

for the Board