Ontario Labour Relations Board
Pell Insulation Ltd., Applicant v. Drywall, Acoustic, Lathing and Insulation United Brotherhood of Carpenters and Joiners of America, Local 675, and Cesar Rodrigues, Julio Da Silva and Yvon Therrien, Responding Parties.
BEFORE: David A. McKee, Vice-Chair.
APPEARANCES: Laura K. Williams, Luc Pellerin, Kim Fergo, Bernie Torchia for the applicant; Mike McCreary, Cesar Rodrigues, Julio Da Silva and Yvon Therrien for the responding parties.
DECISION OF THE BOARD; May 4, 2001
Decision
1This is an application regarding an unlawful strike seeking relief under section 144 of the Labour Relations Act, 1995, S. O. 1995 ch. 1 ("the Act"). In addition the applicant, Pell Insulation Ltd. (“Pell”) brings an identical unfair labour practice complaint pursuant to section 96 alleging a breach of various other sections of the statute.
2The applications were filed on May 1, 2001. In accordance with the Board’s usual practice, the Registrar scheduled this matter for hearing on an expedited basis. The Board abridged the time limits for filing a response. The matter commenced on May 3, 2001.
3During the course of this application on May 3, 2001, the applicant sought to add Yvon Therrien as a responding party. Although the other responding parties initially opposed this request, they and Mr. Therrien ultimately consented to his addition as a responding party. He is therefore added as a responding party to this proceeding. All the responding parties are hereinafter referred to as the “Union”.
4At the end of the Pell’s case, before asking the responding parties to call their evidence I advised counsel that I was concerned about the Board’s jurisdiction in this matter. I raised these as matters of concern to the Board and stressed then, and I repeat now, that I have made no final findings. That could only be done after hearing all of the evidence and hearing submissions from all parties. However, I was very concerned that the matter appeared to be proceeding in the incorrect forum. The Board has only limited jurisdiction in this matter. Essentially the applicant must prove that the activities complained of meet the statutory definition of a strike. That definition provides:
- (1) In this Act,
"strike" includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slow‑down or other concerted activity on the part of employees designed to restrict or limit output;
5In contrast, section 102(1) of the Courts of Justice Act, R.S.O. 1990 ch. C-43 is a much wider provision which covers activities defined in that section as a “labour dispute”. It provides:
102.(1) “Labour dispute” defined – In this section, “labour dispute” means a dispute or difference concerning terms, tenure or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.
6One of the essential differences is that the disputants need not stand in the proximate relation of employer and employee.
7I do not mean to suggest that the case is frivolous or ill-thought. I did express concerns that the applicant was in the wrong forum.
8After considering its position, the applicant sought an adjournment on a sine die basis, in order that it might further consider its options and the manner in which it was to proceed. The Union opposed this motion. They relied on the Board’s practice in many such cases to dismiss the application with leave to the applicant to file a new complaint if fresh particulars the type of events complained of were to recur, or to require the applicant to withdraw the application entirely.
9Neither of these options is appropriate in this case. If the Board were to dismiss the application that represents a decision which prevents the relitigation of that same complaint before this Board. The applicant had no desire to do that, but rather to consider further its choice of venue. It did so at the urging of the Board, not because it was concerned about how its case had been presented. Counsel for Pell stated that she was not at all certain that she agreed with my comments. There is nothing in the manner in which the case has been presented so far to suggest that the Pell does not have something to complain about (in the absence of the Union’s evidence) or that it simply wishes time to add to its case. It has completed its case and, but for my comments, would have proceeded forward. Similarly, a withdrawal would mean that, in the event that Pell decided to continue with the application, its entire case would have to be recalled. This would result in the waste of two days’ evidence.
10Accordingly, this matter is adjourned. Having regard to the agreement of the parties, the Board hereby adjourns this application sine die for a period not exceeding one year. Unless within that time either party requests that the Board proceed with the matter, it will be deemed terminated without notice to any of the parties.
11Pell may seek to have this matter relisted for hearing at any time. I will not now impose any terms or time limits for certain action by Pell. However, if the matter is relisted for hearing, the Union may (if so advised) seek dismissal of the application if there is any excessive delay, or on any other basis arising from events after May 4, 2001.
12The Board originally scheduled this on an expedited basis. If the matter comes on again for hearing it will have to be before me. This considerably restricts the Board’s ability to schedule. Any future hearings will be scheduled as quickly as possible, but on a less expedited basis. If the applicant seeks to have the matter relisted for hearing, the Registrar is directed to consult with the parties to set a mutually available date. If no such date can be agreed upon, I will hold a telephone conference in order to set a date.
13I remain seized of these applications.
“David A. McKee”
for the Board