1935-01-G Sheet Metal Workers’ International Association, Local 30, Applicant v. Dufferin Roofing Limited, Responding Party.
BEFORE: Harry Freedman, Vice-Chair, and Board Members J.G. Knight and G. McMenemy.
DECISION OF THE BOARD; November 19, 2001
The responding party filed a timely request for reconsideration of the Board’s decision dated October 24, 2001 in this referral of a grievance under section 133 of the Labour Relations Act, 1995, S.O. 1995, c. 1, (the “Act”).
The Board in that decision made a number of findings on the basis that all of the allegations of fact set out in the referral to the Board and in the grievance material had been accepted by the responding party because the responding party failed to file a Request for Hearing and Notice of Intent to Defend/Participate (Form A-87) within the time stipulated under the Board’s Rules.
The responding party does not dispute that it failed to file the requisite response and indicates that it is “fully cognizant of…the reasons for the summary decision of the Board….” The responding party goes on to submit that there are mitigating circumstances and asks that the Board consider two items:
The responding party had only been involved in this type of proceeding once before and in that previous proceeding it had been asked to attend at the Board’s offices for an informal “hearing” prior to filing a defence. It assumed that same thing would happen again when it received notice of a “pre-hearing” and was reinforced in that view when the pre-hearing was cancelled and subsequently rescheduled.
Adding to the responding party’s misinterpretation was an informal conversation with the lawyer for the applicant who the responding party asserts “indicated that there was nothing to worry about and that we would sit down and discuss the matter before any formal proceedings were undertaken.”
The responding party concludes by submitting that it had erred and requested an opportunity to submit a defence to the allegations.
The Board’s decision of October 24, 2001 set out what a responding party needs to take to ensure that the Board will not proceed to make a determination of the matter based only on the material filed by the applicant. The responding party’s lack of experience or mistaken assumptions about what might happen do not, in our view, provide any justification for relieving the responding party of its failure to act promptly upon receipt of the notice from the applicant and more importantly, from the Board.
A Review of the Board’s file in this matter discloses that the applicant had delivered its grievance to the responding party on June 28, 2001 and subsequently amended that grievance by adding additional projects where it claimed the responding party had violated the collective agreement in letters to the responding party dated July 11 and September 28, 2001. The responding party does not indicate when or under what circumstances it had a conversation with counsel for the applicant. It is significant, in our view, that the conversation on which the responding party relies indicated that they “would sit down and discuss the matter before any formal proceedings were undertaken”. It seems to us that formal proceedings were undertaken when this application was filed with the Board. If the conversation referred to by the responding party took place in the context of dealing with the June 28th grievance or the two subsequent amendments to that grievance, than the filing of the referral with the Board ought to have alerted the responding party that formal proceedings had been undertaken. If the conversation took place after the responding party received notice of this proceeding, then surely it was incumbent on the responding party to have done more to ensure that the Board would not proceed to decide the matter without a hearing since it had notice that it was already in the midst of a formal proceeding.
As the Board noted in its October 24, 2001 decision, the only thing the responding party needed to do to avoid default proceedings was to complete the Form A-87 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. Furthermore, the responding party received the following warning in bold print in the Form B-67 sent by the Registrar:
The failure to file a timely Request in the way required by the Board’s Rules of Procedure may result in the referral being decided without a hearing and without further notice to the defaulting party.
In our view, the responding party does not have a reasonable basis for asserting it thought that the matter would dealt with informally when it had explicit notice of the consequences it faced should it not file its Form A-87 within the time prescribed.
The responding party had adequate notice of this matter and failed to respond within the time prescribed. The Board proceeded to dispose of the application based on the material filed. The responding party has failed to persuade us that we ought to reconsider our decision in this matter dated October 24, 2001.
This application for reconsideration is dismissed.
“Harry Freedman”
for the Board